Common use of Determination That Indemnification Is Proper Clause in Contracts

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not parties to the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determination.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not parties to the action, suit or proceeding in question (“"disinterested directors”"), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ ' and experts’ ' fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determination.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not parties to the action, suit or proceeding in question (“"disinterested directors”"), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ ' and experts’ ' fees and expenses) incurred by Indemnitee in connection so cooperating with the persons making this standard of conduct determination.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company Corporation unless a reasonable determination is made that indemnification of such person is not proper in the circumstances because he or she Indemnitee has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (ia) by a majority vote the Board of the directors who are not parties to the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) Directors by a majority vote of a quorum consisting of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are directors not at that the time parties to the action, suit or proceeding in questionProceeding, (ivb) if a quorum cannot be obtained under clause (a), by majority vote of a committee duly designated by the Board of Directors (in which designation directors who are parties may participate), consisting solely of two or more directors not at the time parties to the Proceeding; or (c) by independent special legal counsel mutually agreed upon (i) selected by the Company Board of Directors or its committee in the manner prescribed in clause (a) or (b), or (ii) if a quorum of the Board of Directors cannot be obtained under clause (a) and Indemnitee a committee cannot be designated under clause (b), selected by a majority vote of the full Board of Directors, in which selection directors who are parties may participate, or (d) by the holders of the Corporation’s common stock, but shares owned by or voted under the control of directors who are at the time parties to the Proceeding may not be voted on the determination. Notwithstanding the foregoing, in the event there has been a written opinion addressed change in the composition of a majority of the Board of Directors after the date of the alleged act or omission with respect to which indemnification, an advance or reimbursement is claimed, other than through successor directors approved by the Board of Directors, a copy of which any determination as to such indemnification, advance or reimbursement shall be delivered made by special legal counsel agreed upon by the Board of Directors and the Indemnitee. If the Board of Directors and the Indemnitee are unable to Indemniteeagree upon such special legal counsel, or (v) by the Board of Directors and the Indemnitee each shall select a court of competent jurisdictionnominee, and the nominees shall select such special legal counsel. Indemnitee shall cooperate with reasonable requests of the person, persons or entity making such standard of conduct determinationdetermination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewithdetermination. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, Any costs or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including reasonable attorneys’ and experts’ fees and expensesdisbursements) incurred by Indemnitee in connection so cooperating with the person, persons or entity making this standard such determination shall be borne by the Corporation (irrespective of conduct determinationthe determination as to Indemnitee’s entitlement to indemnification) and the Corporation hereby indemnifies and agrees to hold Indemnitee harmless therefrom.

Determination That Indemnification Is Proper. Any indemnification hereunder shall under this Agreement will (unless otherwise ordered by a court) be made by the Company Corporation unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof). Any such determination shall will be made by one of the following methods, at the election of Indemnitee: in accordance with Section 5 and (ia) by a majority vote of the directors who are not and were not parties to, or threatened to be made a party to, the action, suit or proceeding Claim in question (“disinterested directors”), even if less than a quorum, (iib) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iiic) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall will consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (ivd) by one independent legal counsel mutually agreed upon (regardless whether indemnification is sought by one or more than one director or officer), or (e) by a court of competent jurisdiction; provided, however, that if a Change in Control will have occurred or indemnification is sought in connection with a Company Authorized Proceeding, an indemnification determination under this Agreement will be made by the Company and Indemnitee independent legal counsel in a written opinion addressed to the Board of Directors, a copy of which shall will be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing jurisdiction if no independent legal counsel is timely selected or is willing or able to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determinationact.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b2(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not parties to the action, suit or proceeding in question (“disinterested directorsDisinterested Directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors Disinterested Directors designated by majority vote of disinterested directorsDisinterested Directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders shareholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determination.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company Corporation unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: in accordance with Section 5 and (ia) by a majority vote of the directors who are not and were not parties to, or threatened to be made a party to, the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (iib) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iiic) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (ivd) by one independent legal counsel mutually agreed upon (regardless whether indemnification is sought by one or more than one director or officer), or (e) by a court of competent jurisdiction; provided, however, that if a Change in Control shall have occurred or indemnification is sought in connection with a Company Authorized Proceeding, an indemnification determination hereunder shall be made by the Company and Indemnitee independent legal counsel in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing jurisdiction if no independent legal counsel is timely selected or is willing or able to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determinationact.

Determination That Indemnification Is Proper. Any indemnification hereunder under this Agreement shall (unless otherwise ordered by a court) be made by the Company unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard standards of conduct set forth in Section 1(b) hereof1.1 or 1.2, as applicable, and Section 1.4 above. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors managers who are not parties to the action, suit or proceeding in question (“disinterested directorsmanagers”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors managers designated by majority vote of disinterested directorsmanagers, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares members of stock of all classes entitled to vote on the matter, voting as a single classCompany, which quorum shall consist of stockholders members who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemniteecounsel, or (v) by a the Court of Chancery of the State of Delaware or other court of competent jurisdiction. Upon submission to the Company of a written request for indemnification, Indemnitee shall cooperate with reasonable requests of be entitled to a rebuttable presumption that he has met the persons making such applicable standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost for indemnification set forth in connection therewiththis Section 1. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance have the burden of proof to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee overcome that presumption in connection with the making of any determination contrary to that presumption. If the Company contests the right of Indemnitee to indemnification, the Company shall furnish to Indemnitee a statement of reasons underlying the Company’s position within sixty (60) days following receipt of a written request for indemnification. If the Company fails to respond to a written request for indemnification within such 60-day period, Indemnitee may thereafter submit to the Company a second written request for indemnification. If the Company fails to respond to such second request within an additional period of thirty (30) days, the Company shall thereafter be deemed to have waived its right to contest the right of Indemnitee to indemnification under this Agreement. Nothing contained in this Agreement shall limit the ability of the Court of Chancery of the State of Delaware or other court of competent jurisdiction to determine that Indemnitee has or has not met the applicable standard of conduct determinationfor indemnification.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company Corporation unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: in accordance with Section 5 and (i) by a majority vote of the directors who are not and were not parties to, or threatened to be made a party to, the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) if there are no such directors, or if such directors so direct, by one Independent Legal Counsel in a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties written opinion to the actionBoard of Directors, suit or proceeding in questiona copy of which shall be delivered to Indemnitee, (iv) by independent legal counsel mutually agreed upon if so directed by the Board of Directors, by the stockholders, or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control shall have occurred or indemnification is sought in connection with a Company and Indemnitee Authorized Proceeding, an indemnification determination hereunder shall be made by the Independent Legal Counsel in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing jurisdiction if no Independent Legal Counsel is timely selected or is willing or able to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determinationact.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company Corporation unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: in accordance with Section 5 and (i) by a majority vote of the directors who are not and were not parties to, or threatened to be made a party to, the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon one Independent Legal Counsel (regardless whether indemnification is sought by one or more than one director or officer) , or (v) by a court of competent jurisdiction; provided, however, that if a Change in Control shall have occurred or indemnification is sought in connection with a Company Authorized Proceeding, an indemnification determination hereunder shall be made by the Company and Indemnitee Independent Legal Counsel in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing jurisdiction if no Independent Legal Counsel is timely selected or is willing or able to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determinationact.

Determination That Indemnification Is Proper. Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company Corporation unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not and were not parties to, or threatened to be made a party to, the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel, or (v) by a court of competent jurisdiction; provided, however, that if (A) a Change in Control shall have occurred, (B) indemnification is sought in connection with a Corporation Authorized Proceeding or (C) the Indemnitee provides prompt written notice to the Corporation of his or her request that independent legal counsel mutually agreed upon should be engaged by the Company and Indemnitee Corporation to make such determination, then in each case an indemnification determination hereunder shall be made by independent legal counsel in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to the Indemnitee, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests of the persons making such standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determination.

Determination That Indemnification Is Proper. Any indemnification hereunder under this Agreement shall (unless otherwise ordered by a court) be made by the Company unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard standards of conduct set forth in Section 1(b) hereof1.1 or 1.2. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not parties to the action, suit or proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares stockholders of stock of all classes entitled to vote on the matter, voting as a single classCompany, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to Indemniteecounsel, or (v) by a the Court of Chancery of the State of Delaware or other court of competent jurisdiction. Upon submission to the Company of a written request for indemnification, Indemnitee shall cooperate with reasonable requests of be entitled to a rebuttable presumption that he has met the persons making such applicable standard of conduct determination, including providing to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost for indemnification set forth in connection therewiththis Section 1. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance have the burden of proof to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee overcome that presumption in connection with the making of any determination contrary to that presumption. If the Company contests the right of Indemnitee to indemnification, the Company shall furnish to Indemnitee a statement of reasons underlying the Company’s position within sixty (60) days following receipt of a written request for indemnification. If the Company fails to respond to a written request for indemnification within such 60-day period, Indemnitee may thereafter submit to the Company a second written request for indemnification. If the Company fails to respond to such second request within an additional period of thirty (30) days, the Company shall thereafter be deemed to have waived its right to contest the right of Indemnitee to indemnification under this Agreement. Nothing contained in this Agreement shall limit the ability of the Court of Chancery of the State of Delaware or other court of competent jurisdiction to determine that Indemnitee has or has not met the applicable standard of conduct determinationfor indemnification.

Determination That Indemnification Is Proper. (a) Any indemnification hereunder shall (unless otherwise ordered by a court) be made by the Company Corporation unless a determination is made that indemnification of such person is not proper in the circumstances because he or she has not met the applicable standard of conduct set forth in Section 1(b2(b) hereof. Any such determination shall be made by one of the following methods, at the election of Indemnitee: (i) by a majority vote of the directors who are not parties to the action, suit or proceeding Proceeding in question (“disinterested directors”), even if less than a quorum, (ii) by a majority vote of a committee of disinterested directors designated by majority vote of disinterested directors, even if less than a quorum, (iii) by a majority vote of a quorum of the outstanding shares of stock of all classes entitled to vote on the matter, voting as a single class, which quorum shall consist of stockholders who are not at that time parties to the action, suit or proceeding Proceeding in question, (iv) by independent legal counsel mutually agreed upon by the Company and Indemnitee in a written opinion addressed to the Board of Directors, a copy of which shall be delivered to IndemniteeIndependent Counsel, or (v) by a court of competent jurisdiction. Indemnitee shall cooperate with reasonable requests ; provided, however, that following a Change of Control of the persons making Corporation, with respect to all matters thereafter arising out of acts, omissions or events occurring prior to or after the Change of Control of the Corporation concerning the rights of Indemnitee to seek indemnification under this Section 4, such standard of conduct determination, including providing determination shall be made by Independent Counsel selected in the manner described in Section 4(b). Such Independent Counsel shall determine as promptly as practicable whether and to what extent Indemnitee would be permitted to be indemnified under applicable law and shall render a written opinion to the Corporation and to Indemnitee to such persons documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination without incurring any unreimbursed cost in connection therewith. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or advance to Indemnitee, within five business days of such request accompanied by supporting documentation for specific costs and expenses to be reimbursed or advanced, any and all costs and expenses (including attorneys’ and experts’ fees and expenses) incurred by Indemnitee in connection with making this standard of conduct determinationeffect.