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 5.1 hereof, a determination, if required by applicable law of a Company, with respect to Indemnitee's entitlement thereto shall be made in the specific case as follows, as applicable to the Company making such determination: If a Change in Control shall have occurred, by Independent counsel (selected in accordance with Section 5.3 hereof), in a written opinion to such Board, a copy of which shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Disinterested Directors, in which case in the manner provided for in clause (i) of paragraph (b) below; If a Change in Control shall not have occurred, (i) by a majority vote of the Disinterested Directors, even though less than a quorum of such Board, or (ii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to such Board, a copy of which shall be delivered to the Indemnitee, or (iii) if Indemnitee and such Company mutually agree, by the stockholders of such Company; or As provided in Section 5.4(b) hereof. If it is so determined that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee shall be made within 15 days after such determination. 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 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 each Company (irrespective of the determination as to Indemnitee's entitlement to indemnification), and 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 5.1 hereof, a determination, if required by applicable law of a Company, with respect to Indemnitee's entitlement thereto shall be made in the specific case as follows, as applicable to the Company making such determination: If a Change in Control shall have occurred, by Independent counsel Counsel (selected in accordance with Section 5.3 hereof), in a written opinion to such Board, a copy of which shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Disinterested Directors, in which case in the manner provided for in clause (i) of paragraph (b) below; If a Change in Control shall not have occurred, (i) by a majority vote of the Disinterested Directors, even though less than a quorum of such Board, or (ii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to such Board, a copy of which shall be delivered to the Indemnitee, or (iii) if Indemnitee and such Company mutually agree, by the stockholders of such Company; or As provided in Section 5.4(b) hereof. If it is so determined that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee shall be made within 15 days after such determination. 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 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 each Company (irrespective of the determination as to Indemnitee's entitlement to indemnification), and each Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request to the Company by Indemnitee for indemnification pursuant to the first sentence of Section 5.1 hereofthis Agreement, a determination, if required by applicable law of a Companylaw, with respect to Indemnitee's ’s entitlement thereto shall be made in accordance with Article 2.02-1 of the specific case as followsTBCA; provided, as applicable to however, that, notwithstanding the foregoing, if a Change in Control shall have occurred, such determination shall be made by Independent Counsel selected by the Board from a list of three reasonably acceptable choices proposed by Indemnitee, unless Indemnitee shall request that such determination be made in accordance with Article 2.02-1F (1) or (2) of the TBCA. The Company making shall pay any and all reasonable fees and expenses of Independent Counsel incurred in connection with any such determination: . If a Change in Control shall have occurred, by Independent counsel (selected in accordance with Section 5.3 hereof), in a written opinion to such Board, a copy of which Indemnitee shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Disinterested Directors, in which case in the manner provided for in clause presumed (i) of paragraph (b) below; If a Change in Control shall not have occurred, (i) by a majority vote of the Disinterested Directors, even though less than a quorum of such Board, or (ii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to such Board, a copy of which shall be delivered to the Indemnitee, or (iii) if Indemnitee and such Company mutually agree, by the stockholders of such Company; or As except as otherwise expressly provided in Section 5.4(bthis Agreement) hereof. If it is so determined that Indemnitee is to be entitled to indemnification hereunderunder this Agreement upon submission of a request to the Company for indemnification, payment and thereafter the Company shall have the burden of proof in overcoming that presumption in reaching a determination contrary to Indemnitee that presumption. The presumption shall be made within 15 days after used by Independent Counsel, or such determination. Indemnitee shall cooperate with the other person or persons making such determination with respect to Indemnitee's determining entitlement to indemnification, including providing as a basis for a determination of entitlement to indemnification unless the Company provides information sufficient to overcome that presumption by clear and convincing evidence or the investigation, review and analysis of Independent Counsel or 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 for such determination. Any costs or expenses (including attorneys' fees and disbursements) incurred by Indemnitee in so cooperating with the other person or persons making such determination shall be borne convinces him or them by each Company (irrespective of clear and convincing evidence that the determination as to Indemnitee's entitlement to indemnification), and each Company shall indemnify and hold harmless Indemnitee therefrompresumption should not apply.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 5.1 4.1 hereof, a determination, if required by applicable law of a Companylaw, with respect to Indemnitee's entitlement thereto whether Indemnitee is permitted under applicable law to be indemnified, shall be made in by one of the specific case as follows, as applicable to following four methods (which shall be at the Company making such determination: If election of the Board if there has not been a Change in Control shall have occurred, by Independent counsel (selected or Potential Change in accordance with Section 5.3 hereofControl), in a written opinion to such Board, a copy of and which shall be delivered to at the election of the Indemnitee unless Indemnitee shall request that such determination be made by the Disinterested Directors, in which case in the manner provided for in clause (i) of paragraph (b) below; If if there has been a Change in Control shall not have occurred, or Potential Change in Control: (ia) by a majority vote of the Disinterested Directors, even though less than a quorum quorum, (b) by a committee of such BoardDisinterested Directors designated by a majority vote of the Disinterested Directors, or even though less than a quorum, (iic) if there are no Disinterested Directors, Directors or if such the Disinterested Directors so direct, by Independent Counsel in a written opinion to such the Board, a copy of which shall be delivered to the Indemnitee, or (iiid) if Indemnitee and such Company mutually agreeso directed by the Board, by the stockholders of such the Company; or As provided in Section 5.4(b) hereof. If it is so determined that Indemnitee is entitled permitted to indemnification hereunderbe indemnified under applicable law, payment to Indemnitee shall be made within 15 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 disposition or conclusion of a Claim or 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 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 for 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 each the Company (irrespective of the determination as to Indemnitee's ’s entitlement to indemnification), and each the Company shall indemnify and hold harmless Indemnitee therefrom.

Determination of Request. Upon written request by the Indemnitee for indemnification pursuant to the first sentence of Section 5.1 8(a) hereof, a determination, if required by applicable law of a Companylaw, with respect to the Indemnitee's ’s entitlement thereto shall be made in the specific case case: (i) by the Board by a majority vote of a quorum consisting of Disinterested Directors (as followshereinafter defined); or (ii) if a quorum of the Board consisting of Disinterested Directors is not obtainable or, as applicable to the Company making even if obtainable, such determination: If a Change in Control shall have occurredquorum of Disinterested Directors so directs, by Independent counsel Counsel (as hereinafter defined), as selected in accordance with pursuant to Section 5.3 hereof8(d), in a written opinion to such Board, the Board (which opinion may be a copy of which shall be delivered to Indemnitee unless Indemnitee shall request that such determination be made by the Disinterested Directors, in which case in the manner provided for in clause (i) of paragraph (b) below; If a Change in Control shall not have occurred, (i) by a majority vote of the Disinterested Directors, even though less “more likely than a quorum of such Board, or (ii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to such Boardnot” opinion), a copy of which shall be delivered to the Indemnitee, or (iii) if Indemnitee and such Company mutually agree, by the stockholders of such Company; or As provided in Section 5.4(b) hereof. If it is so determined that the Indemnitee is entitled to indemnification hereunderindemnification, the Company shall make payment to the Indemnitee shall be made within 15 10 days after such determination. The Indemnitee shall cooperate with the person Person or persons Persons making such determination with respect to the Indemnitee's ’s entitlement to indemnification, including providing to such person Person or Persons upon reasonable advance request any documentation or information that which is not privileged or otherwise protected from disclosure and that which is reasonably available to the Indemnitee and reasonably necessary for to such determination. Any Subject to the provisions of Section 10 hereof, any costs or expenses (including attorneys' reasonable attorneys ’ fees and disbursements) incurred by the Indemnitee in so cooperating with the person Person or persons Persons making such determination shall be borne by each Company (irrespective of the determination as to Indemnitee's entitlement to indemnification)Company, and each the Company shall hereby agrees to indemnify and hold the Indemnitee harmless Indemnitee therefrom.

Determination of Request. Upon written request by Indemnitee for indemnification pursuant to the first sentence of Section 5.1 hereof, a determination, if required by applicable law of a Companylaw, with respect to Indemnitee's ’s entitlement thereto shall be made in the specific case as follows, as applicable to the Company making such determinationcase: If (a) if a Change in Control shall have occurred, by Independent counsel (selected in accordance with Section 5.3 hereof), Counsel in a written opinion to such the Board, a copy of which shall be delivered to Indemnitee Indemnitee, unless Indemnitee shall request that such determination be made by the Disinterested Directors, in which case in the manner provided for in clause accordance with Section 8.103(a)(1) or (ia)(2) of paragraph the TBOC; (b) below; If if a Change in Control shall not have occurred, (i) by a majority vote in accordance with Section 8.103 of the Disinterested Directors, even though less than a quorum of such Board, or (ii) if there are no Disinterested Directors, or if such Disinterested Directors so direct, by Independent Counsel in a written opinion to such Board, a copy of which shall be delivered to the Indemnitee, or (iii) if Indemnitee and such Company mutually agree, by the stockholders of such Company; or As provided in Section 5.4(b) hereofTBOC. If it is so determined that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee shall be made within 15 10 days after such determination. 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 for 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 each Company the Corporation (irrespective of the determination as to Indemnitee's ’s entitlement to indemnification), ) and each Company shall the Corporation hereby agrees to indemnify and hold harmless Indemnitee therefrom.