Common use of Procedures for Determining Entitlement to Indemnification Clause in Contracts

Procedures for Determining Entitlement to Indemnification. (a) Determination to be Made by the Board. Upon written request by Indemnitee for indemnification pursuant to Section 5, a determination with respect to Indemnitee’s entitlement thereto shall be made by the Board. The Board’s determination of Indemnitee’s right to indemnification shall be made within the following time frames: (i) if there has been a final disposition of the Proceeding that was the basis for Indemnitee’s claim for indemnification, the Board’s determination with respect to Indemnitee’s entitlement to indemnification shall be made within the later of thirty (30) days after receipt by the Corporation of the request therefor and thirty (30) days after the Indemnitee provides the Corporation with written notice of the final disposition of the applicable Proceeding; and (ii) if there has not been a final disposition of the Proceeding that was the basis for Indemnitee’s claim for indemnification and the Board decides not to wait until the final disposition of that Proceeding to make a determination with respect to Indemnitee’s entitlement to indemnification, the Board’s determination with respect to Indemnitee’s entitlement to indemnification shall be made within sixty (60) days after receipt by the Corporation of the request therefor; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the Board in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. Any such determination by the Board shall be promptly communicated to Indemnitee by written notice, which notice shall include (if applicable) a description of the reason(s) why Indemnitee’s request for indemnification hereunder was denied. In making any such determination, the Board shall act in good faith and provide Indemnitee with a reasonable opportunity to appear before, and present Indemnitee’s case to, the Board.

Procedures for Determining Entitlement to Indemnification. (a) Determination to be Made by the Board. Upon written request by Indemnitee for indemnification pursuant to Section 5, a determination with respect to Indemnitee’s entitlement thereto shall be made in the specific case by one of the following four methods, which shall be at the election of the Board: (1) by a majority vote of the Disinterested Directors, even though less than a quorum, (2) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum, (3) if there are no Disinterested Directors or if the Disinterested Directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee, or (4) if so directed by the Board, by the stockholders of the Corporation. Notwithstanding the foregoing, following a Change in Control of the Corporation, the determination shall be made by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to the Indemnitee. The Board’s determination of Indemnitee’s right to indemnification shall be made within the following time frames: (i) if there has been a final disposition of the Proceeding that was the basis for Indemnitee’s claim for indemnification, the Board’s determination with respect to Indemnitee’s entitlement to indemnification shall be made within the later of thirty (30) days after receipt by the Corporation of the request therefor and thirty (30) days after the Indemnitee provides the Corporation with written notice of the final disposition of the applicable Proceeding; and (ii) if there has not been a final disposition of the Proceeding that was the basis for Indemnitee’s claim for indemnification and the Board Corporation decides not to wait until the final disposition of that Proceeding to make a determination with respect to Indemnitee’s entitlement to indemnification, the Board’s determination with respect to Indemnitee’s entitlement to indemnification shall be made within sixty (60) days after receipt by the Corporation of the request therefor; provided, however, that such 60-day period may be extended for a reasonable time, not to exceed an additional thirty (30) days, if the Board party making the determination in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. Any such determination by the Board shall be promptly communicated to Indemnitee by written notice, which notice shall include (if applicable) a description of the reason(s) why Indemnitee’s request for indemnification hereunder was denied. In making any such determination, the Board party making the determination shall act in good faith and provide Indemnitee with a reasonable opportunity to appear before, before it and present Indemnitee’s case to, the Boardcase.