Common use of Determination of Right of Indemnification Clause in Contracts

Determination of Right of Indemnification. Any indemnification under Section 1 hereof (unless ordered or determined appropriate or proper by a court) with respect to any action shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standards of conduct and satisfied the conditions to indemnification set forth in Section 1 hereof. Such determination shall be made (a) by the Board by a majority vote of directors who were not parties to such action, suit or proceeding or (b) if there are no such directors, a majority of such directors decide to delegate such determination to Independent Legal Counsel (as defined below) or the Board declines to provide indemnification or fails to make such determination within 60 days of the written request of Indemnitee therefor, and such Indemnitee believes indemnification is warranted, then by Independent Legal Counsel in a written opinion. "Independent Legal Counsel" shall be determined as follows: Indemnitee shall provide the Company with a list of three recognized law firms with lawyers with significant experience in advising clients or litigating director or officer indemnification claims on behalf of the parties who allegedly provided or denied indemnification coverage (collectively, the "Law Firms"). None of the Law Firms shall have provided, within the then previous five years, any legal services to any of the Indemnitee, the Company or his, her or its Affiliates (as defined in Merger Agreement). The Company shall then select one of the Law Firms to provide the determination described immediately above. Any determination of indemnification made pursuant to this Section 2 shall be final and non-appeallable absent manifest error.

Determination of Right of Indemnification. Any indemnification under Section 1 hereof (unless otherwise ordered or determined appropriate or proper by a court) with respect to any action shall be made by the Company Corporation only as authorized following receipt of a written demand by the Indemnitee and only (x) if, in the specific case there has been no determination that indemnification of the Indemnitee is not proper in the circumstances because the Indemnitee has not met the applicable standard of conduct set forth in Section 1 or (y) if (but only if) required by Delaware law, upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standards standard of conduct and satisfied the conditions to indemnification set forth in Section 1 hereof1. Such Any such determination shall be made within 30 days from the date the written request of the Indemnitee is received by the Corporation either (ai) by the Board of Directors by a majority vote of a quorum consisting of directors who are not or were not parties to such actionProceeding, suit or proceeding or (bii) if there are no such directorsa quorum is not obtainable or, even if obtainable if a majority quorum of such disinterested directors decide to delegate such determination to Independent Legal Counsel so directs, or, if a change in control (as defined below) or has occurred, by the written opinion of independent legal counsel selected by the Board declines to provide indemnification or fails to make such determination within 60 days of Directors of the written request Corporation (or if a change of control has so occurred, selected by the Indemnitee thereforwith the consent of the Corporation, and such Indemnitee believes indemnification is warranted, then which consent shall not be unreasonably withheld) or (iii) by Independent Legal Counsel the stockholders of the Corporation. A “change in a written opinion. "Independent Legal Counsel" control” shall be determined deemed to have occurred if (i) any “person” (as follows: Indemnitee shall provide the Company with a list of three recognized law firms with lawyers with significant experience such term is used in advising clients or litigating director or officer indemnification claims on behalf Sections 13(d) and 14(d) of the parties who allegedly provided Securities Exchange Act of 1934, as amended), other than a Trustee or denied indemnification coverage (collectively, the "Law Firms"). None other fiduciary holding securities under an employee benefit plan of the Law Firms shall have provided, within Corporation or a corporation owned directly or indirectly by the then previous five years, any legal services to any stockholders of the IndemniteeCorporation in substantially the same proportions as their ownership of stock in the Corporation, is or becomes the Company or his, her or its Affiliates “beneficial owner” (as defined in Merger AgreementRule 13d-3 under such Act). The Company shall then select one , directly or indirectly of securities of the Law Firms Corporation representing 51% or more of the total voting power represented by the Corporation’s then outstanding Voting Securities, (ii) during any period of two consecutive years, individuals who at the beginning of such period constitute the board of directors of the Corporation and any new director whose election by the board of directors or nomination for election by the Corporation’s stockholders was approved by a vote of at least two-thirds of the directors then still in office who either were directors at the beginning of the period or whose election or nomination for election was previously so approved, cease for any reason to provide constitute a majority thereof, or (iii) the determination described immediately above. Any determination of indemnification made pursuant to this Section 2 shall be final and non-appeallable absent manifest error.stockholders

Determination of Right of Indemnification. Any indemnification under Section 1 hereof (unless otherwise ordered or determined appropriate or proper by a court) with respect to any action shall be made by the Company Corporation only as authorized following receipt of a written demand by the Indemnitee and only (x) if, in the specific case there has been no determination that indemnification of the Indemnitee is not proper in the circumstances because the Indemnitee has not met the applicable standard of conduct set forth in Section 1 or (y) if (but only if) required by Delaware law, upon a determination that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standards standard of conduct and satisfied the conditions to indemnification set forth in Section 1 hereof1. Such Any such determination shall be made within 30 days from the date the written request of the Indemnitee is received by the Corporation either (ai) by the Board of Directors by a majority vote of a quorum consisting of directors who are not or were not parties to such actionProceeding, suit or proceeding or (bii) if there are no such directorsa quorum is not obtainable or, even if obtainable if a majority quorum of such disinterested directors decide to delegate such determination to Independent Legal Counsel so directs, or, if a change in control (as defined below) or has occurred subsequent to the Effective Date of the Plan of Reorganization, by the written opinion of independent legal counsel selected by the Board declines to provide indemnification or fails to make such determination within 60 days of Directors of the written request Corporation (or if a change of control has so occurred, selected by the Indemnitee thereforwith the consent of the Corporation, and such Indemnitee believes indemnification is warranted, then which consent shall not be unreasonably withheld) or (iii) by Independent Legal Counsel the stockholders of the Corporation. A "change in a written opinion. "Independent Legal Counselcontrol" shall be determined deemed to have occurred if (i) any "person" (as follows: Indemnitee shall provide the Company with a list of three recognized law firms with lawyers with significant experience such term is used in advising clients or litigating director or officer indemnification claims on behalf Sections 13(d) and 14(d) of the parties who allegedly provided Securities Exchange Act of 1934, as amended), other than a Trustee or denied indemnification coverage (collectivelyother fiduciary holding securities under an employee benefit plan of the Corporation or a corporation owned directly or indirectly by the stockholders of the Corporation in substantially the same proportions as their ownership of stock in the Corporation, is or becomes the "Law Firms"). None of the Law Firms shall have provided, within the then previous five years, any legal services to any of the Indemnitee, the Company or his, her or its Affiliates beneficial owner" (as defined in Merger AgreementRule 13d-3 under such Act). The Company shall then select one , directly or indirectly of securities of the Law Firms to provide Corporation representing 51% or more of the determination described immediately above. Any determination total voting power represented by the Corporation's then outstanding Voting Securities, (ii) during any period of indemnification made pursuant to this Section 2 shall be final two consecutive years, individuals who at the beginning of such period constitute the board of directors of the Corporation and non-appeallable absent manifest error.any new

Determination of Right of Indemnification. Any indemnification under Section 1 hereof Sections 1(a) above (unless ordered or determined appropriate or proper by a court) with respect to any action shall be made by the Company Corporation only following receipt of a written request by the Indemnitee and only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper permissible in the circumstances because the Indemnitee has met the applicable standards standard of conduct and satisfied the conditions to indemnification set forth in Section 1 hereof1(a). Such determination shall be made within thirty (a30) days from the date the written request of the Indemnitee is received by the Board Corporation by (i) a majority vote of a quorum of the board of directors consisting of directors who were are not at the time parties to such actionProceeding; (ii) if such a quorum cannot be obtained, suit by majority vote of a committee duly designated by the board of directors (in which designation directors who are parties may participate) consisting solely of two (2) or proceeding more directors not at the time parties to the Proceeding; (iii) by the shareholders (but shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted in the determination); or (biv) by independent special legal counsel. Such independent special legal counsel shall be selected by (i) the majority vote of a quorum of the board of directors consisting of directors who are not at the time parties to the Proceeding; (ii) if there such a quorum cannot be obtained, by majority vote of a committee duly designated by the board of directors (in which designation directors who are no such directors, a majority parties to the Proceeding may participate) consisting solely of such directors decide to delegate such determination to Independent Legal Counsel two (as defined below2) or more directors not at the Board declines time parties to provide indemnification the Proceeding; (iii) if a quorum of directors not party to the Proceeding cannot be obtained and a committee consisting solely of two (2) or fails more directors not at the time parties to make the Proceeding cannot be designated to select independent special legal counsel, then such determination within 60 days independent special legal counsel may be selected by majority vote of the written request full board of Indemnitee therefor, and such Indemnitee believes indemnification is warranted, then by Independent Legal Counsel directors (in a written opinion. "Independent Legal Counsel" shall be determined as follows: Indemnitee shall provide the Company with a list of three recognized law firms with lawyers with significant experience in advising clients or litigating director or officer indemnification claims on behalf of the which selection directors who are parties who allegedly provided or denied indemnification coverage (collectively, the "Law Firms"). None of the Law Firms shall have provided, within the then previous five years, any legal services to any of the Indemnitee, the Company or his, her or its Affiliates (as defined in Merger Agreementmay participate). The Company term "independent special legal counsel" as used herein, means a law firm, an attorney, or a member of a law firm, that is experienced in matters of corporate law and neither currently is, nor in the past five (5) years has been, retained to represent (i) either the Corporation or Indemnitee in any matter material to either party, or (ii) any other party to a Proceeding giving rise to a claim for indemnification hereunder. The term "independent special legal counsel" shall then select one not include any person who, under the applicable standards of professional conduct prevailing at the time of the Law Firms representation, would have a conflict of interest in representing either the Corporation or Indemnitee in an action to provide determine Indemnitee's rights under the provisions of the Corporation's Bylaws or any agreement upon which Indemnitee relies to establish Indemnitee's right to indemnification or advancement of expenses. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination described immediately above. Any that indemnification is permissible, except that if the determination that indemnification is permissible is made by independent special legal counsel, authorization and evaluation as to reasonableness of indemnification made pursuant to this Section 2 expenses shall be final and non-appeallable absent manifest errormade by those entitled to select such counsel.

Determination of Right of Indemnification. Any indemnification (a) Indemnification and advancement of expenses under Section 1 hereof (unless ordered or determined appropriate or proper by a court) with respect to any action shall this Agreement may not be made by the Company only as Corporation unless authorized in the for a specific case upon Proceeding after a determination has been made that indemnification of the Indemnitee is proper permissible in the circumstances because the Indemnitee has met the applicable standards standard of conduct and satisfied the conditions to indemnification set forth in Section 1 hereof. Such determination shall be made made: (ai) by the Corporation's Board of Directors (the "Board") by a majority vote of a quorum consisting of directors who were not, at the time, parties to the Proceeding, or, if such a quorum cannot be obtained, then by a majority vote of a committee of the Board consisting solely of two or more directors not, at the time, parties to such actionProceeding and who were duly designated to act in the matter by a majority vote of the full Board in which the designated directors who are parties may participate; (ii) by special legal counsel selected by the Board or a committee of the Board by vote as set forth in Section 3(a)(i) hereof, suit or proceeding or or, if the requisite quorum of the full Board cannot be obtained therefor and the committee cannot be established, by a majority vote of the full Board in which director who are parties may participate; or (iii) by the stockholders of the Corporation. (b) Authorization of indemnification and determination as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible. However, if there are no such directorsthe determination that indemnification is made by special legal counsel, a majority authorization of indemnification and determination as to reasonableness of expenses shall be made in the manner specified in Section 3(a)(ii) hereof for selection of such counsel. (c) Shares held by directors decide who are parties to delegate such determination to Independent Legal Counsel (as defined below) or the Board declines to provide indemnification or fails to make such determination within 60 days of Proceeding may not be voted on the written request of Indemnitee therefor, and such Indemnitee believes indemnification is warranted, then by Independent Legal Counsel in a written opinion. "Independent Legal Counsel" shall be determined as follows: Indemnitee shall provide the Company with a list of three recognized law firms with lawyers with significant experience in advising clients or litigating director or officer indemnification claims on behalf of the parties who allegedly provided or denied indemnification coverage (collectively, the "Law Firms"). None of the Law Firms shall have provided, within the then previous five years, any legal services to any of the Indemnitee, the Company or his, her or its Affiliates (as defined in Merger Agreement). The Company shall then select one of the Law Firms to provide the determination described immediately above. Any determination of indemnification made pursuant to this subject matter under Section 2 shall be final and non-appeallable absent manifest error3 hereof.