Common use of Limitation on Expense Advance Clause in Contracts

Limitation on Expense Advance. Notwithstanding any of the foregoing provisions in this Section 8, the Corporation shall not be obligated to make an Expense Advance to Indemnitee in connection with a lawsuit filed directly by the Corporation against Indemnitee if an absolute majority of the members of the Board of Directors reasonably determines in good faith, within ten (10) days of Indemnitee’s request for an Expense Advance, that the facts known to them at the time such determination is made demonstrate clearly and convincingly that Indemnitee acted in bad faith after Indemnitee has had an opportunity, with counsel, to present his case to the Board. If such a determination is made, Indemnitee may have such decision reviewed by another forum, in the manner set forth in Section 10, with all references therein to “indemnification” being deemed to refer to “Expense Advance” and the burden of proof shall be on the Corporation to demonstrate clearly and convincingly that, based on the facts known at the time, Indemnitee acted in bad faith. The Corporation may not avail itself of this Section 8(c) as to a given lawsuit if, at any time after the occurrence of the activities or omissions that are the primary focus of the lawsuit, the Corporation has undergone a Change in Control.

Limitation on Expense Advance. Notwithstanding any of the foregoing provisions in this Section 8, the Corporation shall not be obligated to make an Expense Advance to Indemnitee in connection with a lawsuit filed directly by the Corporation against Indemnitee if an absolute majority of the members of the Board of Directors reasonably determines in good faith, within ten (10) days of Indemnitee’s 's request for an Expense Advance, that the facts known to them at the time such determination is made demonstrate clearly and convincingly that Indemnitee acted in bad faith after Indemnitee has had an opportunity, with counsel, to present his case to the Board. If such a determination is made, Indemnitee may have such decision reviewed by another forum, in the manner set forth in Section 10, with all references therein to “"indemnification” " being deemed to refer to “"Expense Advance” " and the burden of proof shall be on the Corporation to demonstrate clearly and convincingly that, based on the facts known at the time, Indemnitee acted in bad faith. The Corporation may not avail itself of this Section 8(c) as to a given lawsuit if, at any time after the occurrence of the activities or omissions that are the primary focus of the lawsuit, the Corporation has undergone a Change in Control.