Common use of Determination of Request Clause in Contracts

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made made, in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 5.1 hereof, a determination, if required by applicable lawlaw of a Company, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee's entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2: (a) follows, as applicable to the Company making such determination: If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel counsel (selected in accordance with Section 4.3) 5.3 hereof), in a written opinion to the Board and Indemniteesuch Board, a copy of which shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Board, or a committee of the BoardDisinterested Directors, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors Directors, even though less than a quorum of the such Board, or (ii) by a majority vote of a committee solely of two if there are no Disinterested Directors, or more if such Disinterested Directors designated so direct, by Independent Counsel in a written opinion to act in such Board, a copy of which shall be delivered to the matter by a majority vote of all Disinterested Directors even though less than a quorum of the BoardIndemnitee, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b)if Indemnitee and such Company mutually agree, or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) by the stockholders of the Company such Company; or As provided in a vote that excludes the shares held by directors who are not Disinterested DirectorsSection 5.4(b) hereof. If it is so determined that Indemnitee is permitted entitled to be indemnified under applicable lawindemnification hereunder, payment to Indemnitee shall be made within 10 15 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to for such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the each Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), and the each Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 5.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee's entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) 5.3 hereof), in a written opinion to the Board and IndemniteeBoard, a copy of which shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Board, or a committee of the BoardDisinterested Directors, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or; (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors Directors, even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two if there are no Disinterested Directors, or more if such Disinterested Directors designated so direct, by Independent Counsel in a written opinion to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, a copy of which shall be delivered to the Indemnitee, or (iii) by Independent Counsel selected by if Indemnitee and the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b)Company mutually agree, or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) by the stockholders of the Company Company; or (c) As provided in a vote that excludes the shares held by directors who are not Disinterested DirectorsSection 5.4(b) hereof. If it is so determined that Indemnitee is permitted entitled to be indemnified under applicable lawindemnification hereunder, payment to Indemnitee shall be made within 10 15 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to for such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made made, in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall reasonably cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.54.4, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 5.1 hereof, a determination, if required by applicable lawlaw of a Company, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee's entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2: (a) follows, as applicable to the Company making such determination: If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) 5.3 hereof), in a written opinion to the Board and Indemniteesuch Board, a copy of which shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Board, or a committee of the BoardDisinterested Directors, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors Directors, even though less than a quorum of the such Board, or (ii) by a majority vote of a committee solely of two if there are no Disinterested Directors, or more if such Disinterested Directors designated so direct, by Independent Counsel in a written opinion to act in such Board, a copy of which shall be delivered to the matter by a majority vote of all Disinterested Directors even though less than a quorum of the BoardIndemnitee, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b)if Indemnitee and such Company mutually agree, or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) by the stockholders of the Company such Company; or As provided in a vote that excludes the shares held by directors who are not Disinterested DirectorsSection 5.4(b) hereof. If it is so determined that Indemnitee is permitted entitled to be indemnified under applicable lawindemnification hereunder, payment to Indemnitee shall be made within 10 15 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to for such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the each Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), and the each Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law Article III to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Partnership agree, by the stockholders unitholders of the Company Partnership in a vote that excludes the shares units held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable lawArticle III, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company Partnership pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company Partnership (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company Partnership shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon receipt of the written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurredoccurred subsequent to the date of this Agreement, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurredoccurred subsequent to the date of this Agreement, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified indemnified, shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Board, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (bSection 4.2(b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two (2) or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors Directors, even though less than a quorum of the Board, or (iii) if there are no Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, with Independent Counsel being selected by the Board or a committee of the Board by a vote of the Disinterested Directors as set forth in clauses (i) or (ii) of this paragraph (bSection 4.2(b), or if such vote is not obtainable or such a committee of Disinterested Directors cannot be established, by a majority vote of all directorsthe Board, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 thirty (30) days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law Article III to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Partnership agree, by the stockholders unitholders of the Company Partnership in a vote that excludes the shares units held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable lawArticle III, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company Partnership pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company Partnership (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company Partnership shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified indemnified, shall be made in accordance with the terms of Section 4.54.4, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Board, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) belowSection 4.2(b); or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors Directors, even though less than a quorum of the Board, or (iii) if there are no Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, with Independent Counsel being selected by the Board or a committee of the Board by a vote of the Disinterested Directors as set forth in clauses clause (i) or clause (ii) of this paragraph (bSection 4.2(b), or if such vote is not obtainable or such a committee of Disinterested Directors cannot be established, by a majority vote of all directorsthe Board, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made made, in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall reasonably cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified in the specific case, shall be made in accordance with the terms of Section 4.54.4, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Board, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (bSection 4.2(b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two (2) or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors Directors, even though less than a quorum of the Board, or (iii) if there are no Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, with Independent Counsel being selected by the Board or a committee of the Board by a vote of the Disinterested Directors as set forth in clauses (i) or (ii) of this paragraph (bSection 4.2(b), or if such vote is not obtainable or such a committee of Disinterested Directors cannot be established, by a majority vote of all directors, or (iv) by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested DirectorsBoard. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 ten (10) days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified indemnified, shall be made in accordance with the terms of Section 4.54.4, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and of Directors, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the BoardBoard of Directors, or a committee of the BoardBoard of Directors, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (bSection 4.2(b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board of Directors by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard of Directors, or (ii) by a majority vote of a committee consisting solely of two (2) or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors Directors, even though less than a quorum of the BoardBoard of Directors, or (iii) if there are no Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel selected by in a written opinion to the Board or of Directors, a committee copy of the Board which shall be delivered to Indemnitee, with Independent Counsel being selected by a vote of the Disinterested Directors as set forth in clauses (i) or (ii) of this paragraph (bSection 4.2(b), or if such vote is not obtainable or such a committee of Disinterested Directors cannot be established, by a majority vote of all directorsthe Board of Directors, or (iv) if Indemnitee and the Corporation agree, by the stockholders of the Company Corporation in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 ten (10) days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company Corporation shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely of two or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the Board, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof5.1, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee’s entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.35.3) in a written opinion to the Board and Board, a copy of which shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or; (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard consisting of Disinterested Directors, or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority vote of a committee solely of two or more Disinterested Directors the Board designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the entire Board, consisting solely of two or more Disinterested Directors, (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote quorum is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders shareholders of the Company in a vote that excludes the shares held by the Indemnitee and directors who are not Disinterested Directors; or (c) As provided in Section 5.4(b). If it is so determined that Indemnitee is permitted entitled to be indemnified under applicable lawindemnification hereunder, payment to Indemnitee shall be made within 10 15 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person person, persons or persons entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to for such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person person, persons or persons entity making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company Corporation shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified indemnified, shall be made in accordance with the terms of Section 4.54.4, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Board, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (bSection 4.2(b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee solely consisting of two (2) or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors Directors, even though less than a quorum of the Board, or (iii) if there are no Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, with Independent Counsel being selected by the Board or a committee of the Board by a vote of the Disinterested Directors as set forth in clauses (i) or (ii) of this paragraph (bSection 4.2(b), or if such vote is not obtainable or such a committee of Disinterested Directors cannot be established, by a majority vote of all directorsthe Board, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directorsany interested shareholder. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 thirty (30) days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 5.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.55.5(b), in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.35.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard consisting of Disinterested Directors, or (ii) if there are no Disinterested Directors, or if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority vote of a committee solely of two or more Disinterested Directors the Board designated to act in the matter by a majority vote of all the entire Board, consisting solely of two or more Disinterested Directors even though less than a quorum of the BoardDirectors, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote quorum is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Corporation agree, by the stockholders of the Company Corporation in a vote that excludes the shares held by directors who are not Disinterested Directors. (c) As provided in Section 5.5(b). If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 5.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against the Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company Corporation pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), ) and the Company Corporation shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 5.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee's entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.35.3) in a written opinion to the Board and Board, a copy of which shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; orthat (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard consisting of Disinterested Directors, or (ii) if there are no Disinterested Directors, or if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority vote of a committee solely of two or more Disinterested Directors the Board designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the entire Board, consisting solely of two or (iii) more Disinterested Directors, by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote quorum is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Corporation agree, by the stockholders shareholders of the Company Corporation in a vote that excludes the shares held by directors who are not Disinterested Directors; or (c) As provided in Section 5.5(b). If it is so determined that Indemnitee is permitted entitled to be indemnified under applicable lawindemnification hereunder, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), ) and the Company Corporation shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof5.1, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.55.4, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or if a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.35.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or specified in Indemnitee’s request and in the manner provided for in clause (i) or (ii) (as applicable) of paragraph (b) below; or (b) If a Potential Change in Control or if a Change in Control shall not have occurred, then by the determination shall be made manner determined by one of the followingBoard from among the following choices (subject, in the case of clause (iv), to the agreement of Indemnitee’s sole discretion, as the Indemnitee requests in writing: ): (i) by the Board by a majority vote of the Disinterested and Independent Directors, regardless of whether the Disinterested and Independent Directors even though less than constitute a quorum of the Board, or or (ii) by a majority vote of a committee solely of two or more Disinterested Directors the Board, if (A) the committee is designated to act in the matter by a majority vote of all the Disinterested and Independent Directors, regardless of whether the Disinterested and Independent Directors even though less than constitute a quorum of the Board, and (B) the committee consists solely of one or more Disinterested and Independent Directors, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or and such a committee cannot be established, by a majority vote of all directorsdirectors of the Board (unless such a procedure is not permitted by applicable law), or or (iv) if Indemnitee and the Corporation agree, by the stockholders shareholders of the Company Corporation in a vote that excludes the shares held beneficially owned by directors who are not Disinterested and Independent Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 5.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company Corporation pursuant to, and to the extent required by, the provisions of Article IIIIV. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company Corporation shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.54.5(b), in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard consisting of Disinterested Directors, or (ii) if there are no Disinterested Directors, or if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority vote of a committee solely of two or more Disinterested Directors the Board designated to act in the matter by a majority vote of all the entire Board, consisting solely of two or more Disinterested Directors even though less than a quorum of the BoardDirectors, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote quorum is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against the Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), ) and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, or the shareholders of the Company, in which case by the person or persons or specified in the Indemnitee’s request and in the manner provided for in clause (i), (ii) or (iiiv) (as applicable) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then by the determination shall be made manner determined by one of the followingBoard from among the following choices (subject, in the case of clause (iv), to the agreement of Indemnitee’s sole discretion, as the Indemnitee requests in writing: ): (i) by the Board by a majority vote of the Disinterested Directors, regardless of whether the Disinterested Directors even though less than constitute a quorum of the Board, or or (ii) by a majority vote of a committee solely of two or more Disinterested Directors the Board, if (A) the committee is designated to act in the matter by a majority vote of all the Disinterested Directors, regardless of whether the Disinterested Directors even though less than constitute a quorum of the Board, and (B) the committee consists solely of one or more Disinterested Directors, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or and such a committee cannot be established, by a majority vote of all directorsdirectors of the Board (unless such a procedure is not permitted by applicable law), or or (iv) if Indemnitee and the Company agree, by the stockholders shareholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence Section 5.1 or an advancement of Expenses pursuant to Section 4.1 hereof4.3, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee's entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.35.3) in a written opinion to the Board and Board, a copy of which shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or; (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard consisting of Disinterested Directors, or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority vote of a committee solely of two or more Disinterested Directors the Board designated to act in the matter by a majority vote of all Disinterested Directors even though less than a quorum of the entire Board, consisting solely of two or more Disinterested Directors, (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote quorum is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Corporation agree, by the stockholders shareholders of the Company Corporation in a vote that excludes the shares held by directors who are not Disinterested Directors; or (c) As provided in Section 5.4(b). If it is so determined that Indemnitee is permitted entitled to be indemnified under applicable lawindemnification or an advancement of Expenses hereunder, payment to Indemnitee shall be made within 10 15 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person person, persons or persons entity making such determination with respect to Indemnitee’s 's entitlement to indemnificationindemnification only, including providing to such person person, persons or entity upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to for such determination. Other than a written request and reasonable support for Expenses incurred, Indemnitee shall not be required to cooperate or provide any other documentation or information with respect to a request or determination with respect to the advancement of Expenses. Any costs or expenses (including attorneys’ ' fees and disbursements) incurred by Indemnitee in so cooperating with the person person, persons or persons entity making such determination shall be borne by the Company Corporation (irrespective of the determination as to Indemnitee’s 's entitlement to indemnification), and the Company Corporation shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, ; a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.5MBCA, in the specific case as set forth in this Section 4.2any of the following ways: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a quorum of the Board consisting of Disinterested Directors, or (ii) if a quorum cannot be obtained under subdivision (i), by a majority vote of a committee consisting solely of two or more Disinterested Directors designated to act in by the matter by a majority vote of all Disinterested Directors Board even though less than a quorum of the Board, or (iii) by all independent directors as defined under the MBCA who are Disinterested Directors, or (iv) in a written opinion to the Board and Indemnitee by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or and (ii) of this paragraph (ba), or if such vote is a quorum of the Board cannot obtainable or such be obtained under subdivision (i) and a committee cannot be establishedestablished under subdivision (ii), by a majority vote of all directors, or (ivv) by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors and officers, employees and agents who are named defendants or respondents in the Proceeding or threatened to be so named. In the designation of a committee under subdivision (ii) or in the selection of independent counsel, all Directors may participate. (b) If a determination has been made pursuant to subsection (a) above, that indemnity is permitted under applicable law to be indemnified, the authorization of payment of indemnification shall be made in any of the following ways: (1) By the Board in one of the following ways: (i) By majority vote of two or more Directors who are Disinterested Directors. (ii) By a majority of the members of a committee of two or more Disinterested Directors. (iii) By one or more independent directors as defined under the MBCA who are Disinterested Directors. (iv) If there are no independent directors as defined under the MBCA and less than two Directors who are Disinterested Directors, then by the Board by majority vote. (2) By the stockholders of the Company in a vote that excludes the shares held by Directors who are not Disinterested Directors and officers, employees and agents who are named defendants or respondents in the Proceedings or threatened to be so named. If it is so determined that Indemnitee is permitted to be indemnified and payment is authorized under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification or advancement of Expenses pursuant to the first sentence of Section 4.1 hereof5.1, a determination, if (and only if) required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified Indemnitee's entitlement thereto shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Special Legal Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Board, a copy of which shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by a majority vote of the BoardDisinterested Directors, or even though less than a committee quorum of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or; (b) If a Potential Change in Control or a Change in Control shall not have occurred, then at the determination shall be made by one option of the followingIndemnitee, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the those present at a meeting in which a quorum is present, and only Disinterested Directors even though less than a quorum of shall be counted in satisfying the Board, quorum; or (ii) if a quorum cannot be obtained as contemplated in subsection (i), by a majority vote of a committee solely of the Board designated by the Board, which committee shall consist of two or more Disinterested Directors designated Directors, except that directors who are parties to act the Proceeding may participate in the matter by a majority vote designation of all Disinterested Directors even though less than a quorum of for the Board, committee; or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote is not obtainable or such a committee cannot be established, by a majority vote of all directors, Special Legal Counsel; or (iv) by the stockholders shareholders, by a majority of the Company votes entitled to be cast by holders of qualified shares present in person or by proxy at a vote meeting. A majority of the votes entitled to be cast by the holders of all qualified shares constitutes a quorum for purposes of action that excludes complies with this section. Shareholders' action that otherwise complies with this section is not affected by the presence of holders, or the voting of shares held by directors who that are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained qualified shares; or (c) As provided in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination or resolution of a Claim involving Indemnitee for which indemnification is sought hereunder; provided, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification5.5(b), and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified shall be made in accordance with the terms of Section 4.54.5(b), in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the BoardBoard consisting of Disinterested Directors, or (ii) if there are no Disinterested Directors, or if a quorum of the Board consisting of Disinterested Directors is not obtainable, by a majority vote of a committee solely of two or more Disinterested Directors the Board designated to act in the matter by a majority vote of all the entire Board, consisting solely of two or more Disinterested Directors even though less than a quorum of the BoardDirectors, or (iii) by Independent Counsel selected by the Board or a committee of the Board by a vote as set forth in clauses (i) or (ii) of this paragraph (b), or if such vote quorum is not obtainable or such a committee cannot be established, by a majority vote of all directors, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against the Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required 8 by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s 's s entitlement to indemnification, including providing to such person upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or expenses (including attorneys’ 's fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s 's s entitlement to indemnification), ) and the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 4.1 hereof, a determination, if required by applicable law, with respect to whether Indemnitee is permitted under applicable law to be indemnified indemnified, shall be made in accordance with the terms of Section 4.5, in the specific case as set forth in this Section 4.2follows: (a) If a Potential Change in Control or a Change in Control shall have occurred, by Independent Counsel (selected in accordance with Section 4.3) in a written opinion to the Board and Board, a copy of which opinion shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made by the Board, or a committee of the Board, in which case by the person or persons or in the manner provided for in clause (i) or (ii) of paragraph (bSection 4.2(b) below; or (b) If a Potential Change in Control or a Change in Control shall not have occurred, then the determination shall be made by one of the following, in Indemnitee’s sole discretion, as the Indemnitee requests in writing: (i) by the Board by a majority vote of the Disinterested Directors even though less than a quorum of the Board, or (ii) by a majority vote of a committee consisting solely of two (2) or more Disinterested Directors designated to act in the matter by a majority vote of all Disinterested Directors Directors, even though less than a quorum of the Board, or (iii) if there are no Disinterested Directors or, if such Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, with Independent Counsel being selected by the Board or a committee of the Board by a vote of the Disinterested Directors as set forth in clauses (i) or (ii) of this paragraph (bSection 4.2(b), or if such vote is not obtainable or such a committee of Disinterested Directors cannot be established, by a majority vote of all directorsthe Board, or (iv) if Indemnitee and the Company agree, by the stockholders of the Company in a vote that excludes the shares held by directors who are not Disinterested Directors. If it is so determined that Indemnitee is permitted to be indemnified under applicable law, payment to Indemnitee shall be made within 10 ten (10) days after such determination. Nothing contained in this Agreement shall require that any determination be made under this Section 4.2 prior to the final, non-appealable determination disposition or resolution conclusion of a Claim involving Indemnitee for which indemnification is sought hereunderor Proceeding against Indemnitee; provided, however, that Expense Advances shall continue to be made by the Company pursuant to, and to the extent required by, the provisions of Article III. Indemnitee shall cooperate with the person or persons making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person or persons upon reasonable advance request any documentation or information that is not privileged or otherwise protected from disclosure and that is reasonably available to Indemnitee and is reasonably necessary to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person or persons making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification), and the Company shall indemnify and hold harmless Indemnitee therefrom.