Common use of Determination of Request Clause in Contracts

Determination of Request. Upon written request to the Corporation by an Indemnitee for indemnification pursuant to these By-Laws, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in accordance with Sections 8.101 and 8.103 of the TBOC; provided, however, that notwithstanding the foregoing, if a Change in Control shall have occurred, such determination shall be made by Independent Counsel selected by Indemnitee, unless Indemnitee shall request that such determination be made in accordance with Section 8.103(a) (1) or (2). The Corporation 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, Indemnitee shall be presumed (except as otherwise expressly provided in this Article IV) to be entitled to indemnification under this Article IV upon submission of a request to the Corporation for indemnification, and thereafter the Corporation shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. The presumption shall be used by Independent Counsel, or such other person or persons determining entitlement to indemnification, as a basis for a determination of entitlement to indemnification unless the Corporation provides information sufficient to overcome such presumption by clear and convincing evidence or the investigation, review and analysis of Independent Counsel or such other person or persons convinces him, her or them by clear and convincing evidence that the presumption should not apply.

Determination of Request. Upon written request to the Corporation by an Indemnitee for indemnification pursuant to these By-Lawsthe first sentence of Section 5.1 hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in accordance with Sections 8.101 and 8.103 of the TBOC; provided, however, that notwithstanding the foregoing, specific case: (a) if a Change in Control shall have occurred, such determination shall be made by Independent Counsel selected by in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, unless Indemnitee shall request that such determination be made in accordance with Section 8.103(a) (1Article 2.02-1F(1) or (2). The Corporation shall pay any and all reasonable fees and expenses ) of Independent Counsel incurred in connection with any such determination. If the TBCA; (b) if a Change in Control shall not have occurred, in accordance with Article 2.02-1 of the TBCA. If it is so determined that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee shall be presumed (except as otherwise expressly provided in this Article IV) made within 10 days after such determination. Indemnitee shall cooperate with the person making such determination with respect to be entitled to indemnification under this Article IV upon submission of a request to the Corporation for indemnification, and thereafter the Corporation shall have the burden of proof in overcoming that presumption in reaching a determination contrary to that presumption. The presumption shall be used by Independent Counsel, or such other person or persons determining 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 to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination shall be borne by the Corporation (irrespective of the determination as a basis for a determination of to Indemnitee’s entitlement to indemnification unless indemnification) and the Corporation provides information sufficient hereby agrees to overcome such presumption by clear indemnify and convincing evidence or the investigation, review and analysis of Independent Counsel or such other person or persons convinces him, her or them by clear and convincing evidence that the presumption should not applyhold harmless Indemnitee therefrom.

Determination of Request. Upon written request to the Corporation by an Indemnitee for indemnification pursuant to these By-Lawsthe first sentence of Section 5.1 hereof, a determination, if required by applicable law, with respect to Indemnitee’s entitlement thereto shall be made in accordance with Sections 8.101 and 8.103 of the TBOC; provided, however, that notwithstanding the foregoing, specific case: (a) if a Change in Control shall have occurred, such determination by Special Counsel (selected in accordance with Section 5.3) in a written opinion to the Board, a copy of which shall be made by Independent Counsel selected by delivered to Indemnitee, unless Indemnitee shall request that such determination be made in accordance with Section 8.103(a) 8.103(a)(1), (12), (4) or (2). The Corporation shall pay any and all reasonable fees and expenses 5) of Independent Counsel incurred in connection with any such determination. If the TBOC; or (b) if a Change in Control shall not have occurred, in accordance with Section 8.103(a) of the TBOC. If it is so determined that Indemnitee is entitled to indemnification hereunder, payment to Indemnitee shall be presumed (except as otherwise expressly provided made within 10 days after such determination. Nothing contained in this Article IV) Agreement shall require that any determination be made under this Section 5.2 prior to the disposition or conclusion of a Claim or Proceeding against Indemnitee; provided, however, that advancement of Expenses shall continue to be entitled to indemnification under this Article IV upon submission of a request made by the Corporation pursuant to, and to the Corporation for indemnificationextent required by, the provisions of Articles III and thereafter IV. Indemnitee shall cooperate with the Corporation shall have the burden of proof in overcoming that presumption in reaching a person making such determination contrary with respect to that presumption. The presumption shall be used by Independent Counsel, or such other person or persons determining 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 to such determination. Any costs or expenses (including attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person making such determination shall be borne by the Corporation (irrespective of the determination as a basis for a determination of to Indemnitee’s entitlement to indemnification unless indemnification) and the Corporation provides information sufficient hereby agrees to overcome such presumption by clear indemnify and convincing evidence or the investigation, review and analysis of Independent Counsel or such other person or persons convinces him, her or them by clear and convincing evidence that the presumption should not applyhold harmless Indemnitee therefrom.