Common use of Standard of Conduct Clause in Contracts

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. No claim The Bank shall not be responsible for indemnification the title, validity or genuineness of any property or evidence of title thereto received by it or delivered by it pursuant to this Agreement and reasonably believed by it to be valid or genuine and shall be paid held harmless in acting upon proper instructions, resolutions, any notice, request, consent, certificate or other instrument reasonably believed by it to be genuine and to be signed by the Company unless it has been determined that Indemnitee acted in good faith proper party or parties and in a manner Indemnitee reasonably believed shall be entitled to receive as conclusive proof of any fact or matter required to be ascertained by it hereunder, a certificate signed by the President, a Vice President, the Treasurer, the Secretary or an Assistant Secretary of the Trust. The Bank may receive and accept a resolution as conclusive evidence (a) of the authority of any person to act in accordance with such vote or not opposed (b) of any determination or of any action by the Board of Trustees pursuant to the best interests Declaration of Trust as described in such vote, and such vote may be considered as in full force and effect until receipt by the Company andBank of written notice from the Secretary or an Assistant Secretary to the contrary. The Bank shall be entitled to rely on and may act upon advice of counsel (who may be counsel for the Trust) on all matters, and shall be without liability for any action reasonably taken or omitted pursuant to such advice. Provided, however, that if such reliance involves a potential material loss to the Trust, the Bank shall advise the Trust of any such actions to be taken in accordance with such advice of counsel to the Bank. The Bank shall be held to the exercise of reasonable care in carrying out the provisions of this Agreement but shall be liable only for its own negligent or bad faith acts or wilful misconduct or wilful failures to act by the Bank and its agents or Employees. Bank shall have no responsibility for reviewing or questioning the acts or records of any prior Custodian. The Trust shall indemnify the Bank and hold it harmless from and against all losses, liabilities, demands, claims, actions, expenses, attorneys' fees, and taxes with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to each Series which the Indemnitee Bank may suffer or incur on account of being Bank hereunder except to the extent that such losses, liabilities, demands, claims, actions, expenses, attorneys fees or taxes arise from the Bank's own gross negligence or bad faith. Notwithstanding the foregoing the Bank shall have been adjudged to be liable to the Company, except as determined by Trust for any loss or damage resulting from the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote use of the directors Book-Entry System or the Depository arising by reason of any negligence, misfeasance or misconduct on the part of the Company who are not parties to the Proceeding, even though less than a quorum, Bank or (B) by a committee any of such directors designated by a majority vote of such directors, even though less than a quorum, its employees or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Companyagents. If a Change Series requires the Bank to take any action with respect to Securities, which action involves the payment of Control has occurredmoney or which action may, in the opinion of the Bank, result in the Bank or its nominee assigned to such Series being liable for the payment of money or incurring liability of some other form, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees)Series, claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be as a prerequisite to or affect requiring the Company’s obligation Bank to advance Expenses take such action, shall, prior to Indemnitee pursuant the Bank taking such action, provide indemnity in writing to Section 3 of this Agreementthe Bank in an amount and form satisfactory to it.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee Ixxxxxxxxx acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel Chief Executive Officer of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “"Standard of Conduct”", with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. No claim for indemnification To the extent that the provisions of Section 9(a) are inapplicable to a Claim related to an Indemnifiable Event that shall be paid by the Company unless it have been finally disposed of, any determination of whether Indemnitee has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to satisfied any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the applicable standard of conduct set forth in Section 145 under Delaware law that is a legally required condition to indemnification of Indemnitee hereunder against Losses relating to such Claim and any determination that Expense Advances must be repaid to the DGCL Company (as such, the a “Standard of ConductConduct Determination”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding (i) by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors Disinterested Directors, even if less than a quorum of the Company who are not parties to Board, (ii) by a committee of Disinterested Directors designated by a majority vote of the ProceedingDisinterested Directors, even though less than a quorum, or (Biii) by a committee at the election of such directors designated by a majority vote of such directors, even though less than a quorum, Indemnitee in his or (C) if there are no such directors, or if such directors so directher sole discretion, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Counsel in a written opinion addressed to the Company and Indemnitee. Such independent legal counsel Board, a copy of which shall be selected delivered to Indemnitee; and Indemnitee shall cooperate with the persons making such determination, including providing to such persons, upon reasonable request, any documentation or information that is not privileged or otherwise protected from disclosure and which is reasonable available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including attorney’s fees and disbursements) incurred by Indemnitee and approved in so cooperating with the person, persons or entity making such determination shall be borne by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses irrespective of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating determination as to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed Indemnitee’s entitlement to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, indemnification) and the Company hereby consents to service of process indemnifies and agrees to appear hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing with respect to any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall that Indemnitee is or is not entitled to indemnification, including a determination be a prerequisite to description of any reason or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreementbasis for which indemnification has been denied.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her the Indemnitee’s conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except ); provided that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made (i) by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel Independent Legal Counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Legal Counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel Independent Legal Counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayedacting reasonably). The Company shall pay the reasonable and documented fees and expenses of the independent legal counsel Independent Legal Counsel and indemnify the independent legal counsel Independent Legal Counsel against any and all reasonable and documented expenses (including attorneys’ fees), claims, liabilities claims and damages arising out of or relating to its engagement engagement, in each case, except to the extent of the Independent Legal Counsel’s willful misconduct, gross negligence or bad faith (other than an action or failure to act undertaken or refrained from being undertaken at the written or express request of or with the written or express consent of the Company), and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty 60 days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any Except in the case of litigation referred to in the previous sentence, any determination under this Section 5 otherwise 6 shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 4 of this Agreement.

Standard of Conduct. No claim for indemnification shall be paid by the Company pursuant to this Agreement unless it has been determined that Indemnitee Xxxxxxxxxx acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the present standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been finally adjudged to be liable to the CompanyCompany without any further right of appeal, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee Xxxxxxxxxx acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. (a) No claim for indemnification shall be paid by the Company unless it the Company has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunalcourt, such determinations of whether the Standard of Conduct has been satisfied shall be made made: (i) prior to a Change in Control (a) by (A) a majority vote of the Company’s directors of the Company who are not parties to the ProceedingProceeding for which indemnification is sought, even though less than a quorum, or (Bb) by a committee of such directors designated by a majority vote of such the Company’s directors, even though less than a quorum, or (Cc) if there are no such directors, or if such directors so direct, by independent legal counsel Independent Counsel (selected by a majority vote of the Company’s directors and approved by Indemnitee, which approval shall not unreasonably be withheld or delayed) in a written opinion, a copy of which shall be delivered to Indemnitee, or (Dd) by stockholders of the Company. If ’s stockholders, or (ii) following a Change of Control has occurredin Control, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be Independent Counsel (selected by Indemnitee and approved by the Company (Company, which approval shall not unreasonably be unreasonably withheld or delayed)) in a written opinion, a copy of which shall be delivered to Indemnitee. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including without limitation, a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with be made within 10 days after such determination. Indemnitee shall be deemed reasonably cooperate with the person, persons or entity making such determination with respect to have met the Standard of Conduct if the determination Indemnitee’s entitlement to indemnification, including, without limitation, providing to such person, persons or entity upon reasonable advance request any documentation or information which is not made privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any Expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company within sixty days (irrespective of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not determination as to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases thereforIndemnitee’s entitlement to indemnification), and the Company hereby consents to service of process indemnifies and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on hold Indemnitee harmless therefrom to the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreementfullest extent permitted by applicable law.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee Xxxxxxxxxx acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, or (2) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (A) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (B) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (C) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (D) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel and indemnify the independent legal counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any determination under this Section 5 otherwise shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 of this Agreement.

Standard of Conduct. No claim for indemnification shall be paid by the Company unless it has been determined that Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, with respect to any criminal action or proceeding, had no reasonable cause to believe his or her conduct was unlawful, which is the standard of conduct set forth in Section 145 of the DGCL (as such, the “Standard of Conduct”, with such Standard of Conduct to be automatically revised to conform to any successor provision of the DGCL that is more favorable to Indemnitee) except ); provided that no indemnification shall be made with respect to any Proceeding by or in right of the Company as to which the Indemnitee shall have been adjudged to be liable to the Company, except as determined by the court or other tribunal adjudicating the Proceeding. Unless (1a) a Change of Control (as defined in Section 1 of this Agreement) shall have occurred, has occurred or (2b) ordered by a court or other tribunal, such determinations of whether the Standard of Conduct has been satisfied shall be made by (Ai) a majority vote of the directors of the Company who are not parties to the Proceeding, even though less than a quorum, or (Bii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (Ciii) if there are no such directors, or if such directors so direct, by independent legal counsel Independent Legal Counsel in a written opinion, or (Div) by stockholders of the Company. If a Change of Control has occurred, such determination of whether the Standard of Conduct has been satisfied shall be made by independent legal counsel Independent Legal Counsel in a written opinion to the Company and Indemnitee. Such independent legal counsel Independent Legal Counsel shall be selected by Indemnitee and approved by the Company (which approval shall not be unreasonably conditioned, withheld or delayed). The Company shall pay the fees and expenses of the independent legal counsel Independent Legal Counsel and indemnify the independent legal counsel Independent Legal Counsel against any and all expenses (including attorneys’ fees), claims, liabilities and damages arising out of or relating to its engagement and shall indemnify, reimburse and pay Indemnitee for Expenses incurred in connection with such determination. Indemnitee shall be deemed to have met the Standard of Conduct if the determination is not made by the Company within sixty (60) days of receipt by the General Counsel of a written request by Indemnitee for indemnity. If the Indemnitee has been determined not to have met the Standard of Conduct, Indemnitee may commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial de novo determination by the court or challenging any such determination or any aspect thereof, including the legal or factual bases therefor, and the Company hereby consents to service of process and agrees to appear in any such proceeding. Any Except in the case of litigation referred to in the previous sentence, any determination under this Section 5 otherwise 6 shall be conclusive and binding on the Company and Indemnitee. In no event shall a determination be a prerequisite to or affect the Company’s obligation to advance Expenses to Indemnitee pursuant to Section 3 4 of this Agreement.