Common use of Indemnification Determination Clause in Contracts

Indemnification Determination. Any indemnification under this agreement (unless ordered by a Court) shall be made by the Corporation only as authorized in the specific case upon a determination by the Reviewing Party that indemnification of the Indemnitee is proper in the circumstance because Indemnitee has satisfied the standards of conduct set forth in Section 145 of the General Corporation Law of the State of Delaware and is otherwise entitled to be indemnified pursuant to this Agreement and applicable law. The Corporation agrees that all determinations of the right of Indemnitee to indemnification under this Agreement or any other agreement, insurance policy, by-law or certificate of incorporation of the Corporation and its predecessors shall be made by the Reviewing Party in a writing delivered to the Corporation and the Indemnitee (and if the Reviewing Party is special, independent counsel, in a written opinion delivered to the Corporation and the Indemnitee). If the Reviewing Party determines that the Indemnitee is not entitled to indemnification, then such writing (or opinion) shall disclose the bases for such determination in reasonable detail. Notwithstanding anything in this Agreement to the contrary, if Indemnitee is a director or officer of the Corporation at the time of the determination contemplated by this Section 3, then to the extent required by applicable law, the Reviewing Party that makes the determination of entitlement to indemnification contemplated by this Section 3 shall be one of the following: (i) if there has been a Change in Control, the Reviewing Party shall be special, independent counsel selected in the manner provided in Section 1(g); and (ii) if there has not been a Change in Control, the Reviewing Party shall be (A) the directors who are not parties to the Proceeding in connection with which Indemnification is sought, even though less than a quorum of the Board of Directors, (B) a committee of such directors designated by a majority vote of such directors, even though less than a quorum of the Board of Directors, or (C) if there are no such directors, or if a majority of such directors so direct, special, independent legal counsel who has not otherwise performed services for the Corporation or Indemnitee within the last 5 years (other than in connection with such matters). If there has been no determination by the Reviewing Party within thirty days (60 days if the Reviewing Party is special, independent counsel) after written demand for indemnification is presented to the Corporation or if the Reviewing Party determines that Indemnitee is not permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking a determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Corporation hereby consents to service of process and to appear in any such proceeding.

Indemnification Determination. Any indemnification under this agreement (unless ordered by a Courti) shall be made by the Corporation only as authorized in the specific case upon a The determination by the Reviewing Party that indemnification of the Indemnitee is proper in the circumstance because Indemnitee has satisfied the standards of conduct set forth in Section 145 of the General Corporation Law of the State of Delaware and is otherwise entitled with respect to be indemnified pursuant to this Agreement and applicable law. The Corporation agrees that all determinations of the right of Indemnitee Indemnitee’s entitlement to indemnification under this Agreement or any other agreement, insurance policy, by-law or certificate of incorporation of the Corporation and its predecessors shall be made by the Reviewing Party in not later than 30 days after receipt by the Company of a writing delivered written request for indemnification pursuant to Section 7(a) and of all documentation and information reasonably requested by the Corporation and Reviewing Party. Indemnitee shall cooperate with the Indemnitee (and if Reviewing Party, including, without limitation, by providing to the Reviewing Party upon reasonable request any documentation or information which is specialnot privileged or otherwise protected from disclosure, independent counsel, in a written opinion delivered and which is reasonably available to the Corporation and the Indemnitee). . (ii) If the Reviewing Party determines that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding, unless (x) such indemnification is expressly prohibited by applicable law or (y) Indemnitee made a materially false or misleading statement in connection with the request for indemnification. The Company shall not assert in any judicial proceeding that the procedures and presumptions of this Agreement are not valid, binding, and enforceable, and if requested by Indemnitee shall stipulate in any such proceeding that the Company is bound by all the provisions of this Agreement. (iii) If the Reviewing Party fails to determine that Indemnitee is not entitled to indemnification within the time limitation in Section 4(a)(i), the Reviewing Party shall be deemed to have determined that Indemnitee is entitled to indemnification and the provisions of Section 4(a)(ii) shall apply. (iv) If Indemnitee is determined to be entitled to indemnification, then such writing (or opinion) Indemnitee shall disclose receive payment from the bases for Company in accordance with this Agreement within 10 days after the determination, whether such determination in reasonable detail. is under Section 4(a)(ii) or Section 4(a)(iii). (v) Notwithstanding anything in this Agreement to the contrary, if Indemnitee is a director or officer of the Corporation at the time of the determination contemplated by this Section 3, then to the extent required by applicable lawthat Indemnitee has been successful on the merits in defense of any Proceeding, the Reviewing Party that makes the determination of entitlement to indemnification contemplated by this Section 3 Indemnitee’s Expenses for such Proceeding shall be one of indemnified by the following: (i) if there has been a Change in Control, the Reviewing Party shall be special, independent counsel selected in the manner provided in Section 1(g); and (ii) if there has not been a Change in Control, the Reviewing Party shall be (A) the directors who are not parties to the Proceeding in connection with which Indemnification is sought, even though less than a quorum of the Board of Directors, (B) a committee of such directors designated by a majority vote of such directors, even though less than a quorum of the Board of Directors, or (C) if there are no such directors, or if a majority of such directors so direct, special, independent legal counsel who has not otherwise performed services Company without need for the Corporation or Indemnitee within the last 5 years (other than in connection with such matters). If there has been no any determination by the Reviewing Party within thirty days (60 days if and regardless of whether the Reviewing Party is special, independent counsel) after written demand for indemnification is presented has made any determination with respect to the Corporation or if the Reviewing Party determines that whether Indemnitee is entitled to indemnification. The parties agree that success on the merits includes, but is not permitted to be indemnified limited to, any termination of any claim, issue or matter in whole such a Proceeding by dismissal (with or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the State of Delaware having subject matter jurisdiction thereof and in which venue is proper seeking a determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Corporation hereby consents to service of process and to appear in any such proceedingwithout prejudice).