Common use of Proceedings by or in the Right of the Corporation Clause in Contracts

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholders, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders unless and only to the extent that the court in which such action or proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or was a director, as the case may be, officer or agent of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or directorofficer, as the case may be, director or agent or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or a director, as the case may be, officer or agent of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof)enterprise, against expenses (including reasonable subject to Section 13, attorneys’ ' fees and disbursements), damages (compensatory, exemplary, punitive any expenses of establishing a right to indemnification pursuant to this Agreement or otherwise), costs of attachment or similar bonds, judgments, fines under California law) and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld)settlement, in each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit the proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholdersshareholders, except that no indemnification shall be made in with respect of to any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be have been liable to the Corporation in the performance of Indemnitee’s 's duty to the Corporation corporation and its stockholders shareholders, unless and only to the extent that the court in which such action or proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such and then only to the extent that the court shall deem properdetermine.

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify Indemnitee if Indemnitee was be entitled to the rights of indemnification provided in this Section 5 if, by reason of his or is a party her Corporate Status, he or she is, or is threatened to be made made, a party to any threatenedcontemplated, pending pending, or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that favor. Pursuant to this Section 5, Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bondsExpenses, judgments, penalties, fines and, to the fullest extent permitted by law, and amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee him or her or on his or her behalf in connection with the defense any such Proceeding if he or settlement of such action or suit if Indemnitee she acted in good faith and in a manner Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholdersCorporation. Notwithstanding the foregoing, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders if applicable law expressly prohibits such indemnification unless and only to the extent that the Chancery Court of the State of Delaware or the court in which such action Proceeding shall have been brought or proceeding is or was pending pending, shall determine upon application thatthat indemnification against Expenses may nevertheless be made by the Corporation. For purposes of this Section 5, Indemnitee shall be deemed to have acted in view good faith if Indemnitee's action is based on the records or the books of all the circumstances account of the caseCorporation or an Affiliate, including financial statements, or on information supplied to the Indemnitee is fairly and reasonably entitled to indemnity by the officers of the Corporation or an Affiliate in the course of their duties, or on the advice of legal counsel for such expenses which such court shall deem properthe Corporation or an Affiliate by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify be entitled to the rights of indemnification provided in this section 5, if, by reason of his Corporate Status, Indemnitee if Indemnitee was or is a party is, or is threatened in writing to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation’s favor. Pursuant to this section 5, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with the defense or settlement of such action or suit Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Corporation and its stockholdersCorporation. Notwithstanding the foregoing, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders if applicable law expressly prohibits such indemnification unless and only to the extent that the court in which such action Proceeding shall have been brought or proceeding is or was pending shall determine upon application that, in view of all that indemnification against Expenses may nevertheless be made by the circumstances Corporation. Without limiting the generality of the caseforegoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is fairly and reasonably entitled based on information supplied to indemnity the Indemnitee by legal counsel for such expenses which such court shall deem properthe Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. The Corporation With the approval of a court, Indemnitee shall indemnify be entitled to the rights of indemnification provided in this Section 1(b) if, by reason of his or her Corporate Status, the Indemnitee if Indemnitee was or is a party is, or is threatened to be made made, a party to or participant in any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, on behalf of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof. Pursuant to this Section 1(b), Indemnitee shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent all Expenses actually and reasonably incurred by Indemnitee the Indemnitee, or on the Indemnitee's behalf, in connection with such Proceeding if the defense or settlement of such action or suit if Indemnitee acted honestly and in good faith and in with a manner Indemnitee reasonably believed to be in or not opposed view to the best interests of the Corporation and its stockholdersCorporation, except and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Indemnitee had reasonable grounds for believing that the Indemnitee's conduct was lawful; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over adjudged to have not met the parties and the subject matter conditions in Section 124(3) of the dispute from CBCA. [Comment: Section 124(4) permits indemnification of directors, officers, employees and agents for expenses (which no further right would include legal counsel's fees) in derivative actions and actions by the corporation and for judgments, fines or amounts paid in settlement of appeal exists such actions, with the approval of a court. However, where the individual does not fulfill the conditions in Section 124(3) (perhaps where the individual is adjudged to be liable to the Corporation corporation), Section 124(4) does not permit indemnification even for expenses. Thus, indemnification for derivative actions and actions by the corporation is significantly more limited than for third-party actions. The rationale for this distinction is that any liability for breach of fiduciary duty in a derivative action and actions by the performance of Indemnitee’s duty corporation is to make the corporation (on whose behalf the action was brought) whole for harm it suffered, and the corporation would not receive any benefit by indemnifying an individual against such liability. In effect, the corporation would be returning funds to the Corporation and its stockholders unless and only person liable to pay them. As with Section ‎1(a), Section ‎1(b) essentially tracks Section 124(4), except that it makes indemnification mandatory rather than permissible, subject to the extent that the court approval. Prior court approval is required for both indemnification and advances in which such action respect of actions brought by or proceeding is or was pending shall determine upon application that, in view of all the circumstances on behalf of the casecorporation against directors and officers. The requirement for prior court approval does not merely apply to derivative actions but also to actions on behalf of the corporation. Although advance funding should ordinarily be available, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem properwhere the corporation establishes a strong prima facie case of bad faith, even at the preliminary stages of the proceeding, advance funding will be refused. See Cytrynbaum v. Look Communications Inc., 116 OR (3d) 241.]

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify Indemnitee if Indemnitee was be entitled to the rights of indemnification provided in this Section 5 if, by reason of his or is a party her Corporate Status, he or she is, or is threatened to be made made, a party to any threatenedcontemplated, pending pending, or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation Corporation. Pursuant to procure a judgment in its favor by reason of the fact that this Section 5, Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bondsExpenses, judgments, penalties, fines and, to the fullest extent permitted by law, and amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee him or her or on his or her behalf in connection with the defense any such Proceeding if he or settlement of such action or suit if Indemnitee she acted in good faith and in a manner Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholdersCorporation. Notwithstanding the foregoing, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders if applicable law expressly prohibits such indemnification unless and only to the extent that the Chancery Court of the State of Delaware or the court in which such action Proceeding shall have been brought or proceeding is or was pending shall determine upon application thatthat indemnification against Expenses may nevertheless be made by the Corporation. For purposes of this Section 5, Indemnitee shall be deemed to have acted in view good faith if Indemnitee’s action is based on the records or the books of all the circumstances account of the caseCorporation or an Affiliate, including financial statements, or on information supplied to the Indemnitee is fairly and reasonably entitled to indemnity by the officers of the Corporation or an Affiliate in the course of their duties, or on the advice of legal counsel for such expenses which such court shall deem properthe Corporation or an Affiliate, or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify be entitled to the rights of indemnification provided in this Section 4 if, by reason of Indemnitee’s Corporate Status, Indemnitee if Indemnitee was or is a party is, or is threatened to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason favor. Pursuant to this Section 4, Indemnitee shall be indemnified and held harmless against Expenses, liabilities and losses (as well as against any federal, state, local and foreign taxes imposed on Indemnitee as a result of the fact that Indemnitee is actual or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason deemed receipt of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent payments under this Section 4) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with the defense or settlement of such action or suit Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholders. Notwithstanding the foregoing, except that no indemnification against such Expenses, liabilities and losses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to if such indemnification is not permitted by Delaware or other applicable law; provided, however, that indemnification against Expenses, liabilities and losses shall nevertheless be made by the Corporation and its stockholders unless and only in such event to the extent that the Court of Chancery of the State of Delaware or the court in which such action proceeding shall have been brought or proceeding is or was pending pending, shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem properdetermine.

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify be entitled to the rights of indemnification provided in this section 5, if, by reason of his Corporate Status, Indemnitee if Indemnitee was or is a party is, or is threatened in writing to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation's favor. Pursuant to this section 5, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent Expenses actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with the defense or settlement of such action or suit Proceeding if Indemnitee Indemnitce acted in good faith and in a manner Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Corporation and its stockholdersCorporation. Notwithstanding the foregoing, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders if applicable law expressly prohibits such indemnification unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such action Proceeding shall have been brought or proceeding is or was pending pending, shall determine upon application that, in view of all that indemnification against Expenses may nevertheless be made by the circumstances Corporation. Without limiting the generality of the caseforegoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee's action is fairly and reasonably entitled based on information supplied to indemnity the Indemnitee by legal counsel for such expenses which such court shall deem properthe Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee if Indemnitee is or was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding suit by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or was a director, as the case may beofficer, employee or agent of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or a director, as the case may beofficer, employee or agent of another corporation, limited liability company, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof)enterprise, against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines fees) and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholdersCorporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or proceeding is or suit was pending brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), against expenses (including reasonable attorneys’ ' fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholders, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists to be liable to the Corporation in the performance of Indemnitee’s 's duty to the Corporation and its stockholders unless and only to the extent that the court in which such action or proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify be entitled to the rights of indemnification provided in this section 5, if, by reason of his or her Corporate Status, Indemnitee if Indemnitee was or is a party is, or is threatened in writing to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation’s favor. Pursuant to this section 5, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with the defense or settlement of such action or suit Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in in, or not opposed to to, the best interests of the Corporation and its stockholdersCorporation. Notwithstanding the foregoing, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders if applicable law expressly prohibits such indemnification unless and only to the extent that the Court of Chancery of the State of Delaware, or the court in which such action Proceeding shall have been brought or proceeding is or was pending pending, shall determine upon application that, in view of all that indemnification against Expenses may nevertheless be made by the circumstances Corporation. Without limiting the generality of the caseforegoing, for purposes of this section 5, and in addition to other circumstances for which Indemnitee shall be deemed to have acted in good faith, Indemnitee shall conclusively be deemed to have acted in good faith if Indemnitee’s action is fairly and reasonably entitled based on information supplied to indemnity the Indemnitee by legal counsel for such expenses which such court shall deem properthe Corporation or an Affiliate or by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation or an Affiliate.

Proceedings by or in the Right of the Corporation. The Corporation With the approval of a court, Indemnitee shall indemnify be entitled to the rights of indemnification provided in this Section ‎1(b) if, by reason of his or her Corporate Status, the Indemnitee if Indemnitee was or is a party is, or is threatened to be made made, a party to or participant in any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, on behalf of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof. Pursuant to this Section ‎1(b), Indemnitee shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent all Expenses actually and reasonably incurred by Indemnitee the Indemnitee, or on the Indemnitee's behalf, in connection with such Proceeding if the defense or settlement of such action or suit if Indemnitee acted honestly and in good faith and in with a manner Indemnitee reasonably believed to be in or not opposed view to the best interests of the Corporation and its stockholdersCorporation, except and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Indemnitee had reasonable grounds for believing that the Indemnitee's conduct was lawful; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over adjudged to have not met the parties and the subject matter conditions in Section 124(3) of the dispute from CBCA. [Comment: Section 124(4) permits indemnification of directors, officers, employees and agents for expenses (which no further right would include legal counsel's fees) in derivative actions and actions by the corporation and for judgments, fines or amounts paid in settlement of appeal exists such actions, with the approval of a court. However, where the individual does not fulfill the conditions in Section 124(3) (perhaps where the individual is adjudged to be liable to the Corporation corporation), Section 124(4) does not permit indemnification even for expenses. Thus, indemnification for derivative actions and actions by the corporation is significantly more limited than for third-party actions. The rationale for this distinction is that any liability for breach of fiduciary duty in a derivative action and actions by the performance of Indemnitee’s duty corporation is to make the corporation (on whose behalf the action was brought) whole for harm it suffered, and the corporation would not receive any benefit by indemnifying an individual against such liability. In effect, the corporation would be returning funds to the Corporation and its stockholders unless and only person liable to pay them. As with Section ‎1(a), Section ‎1(b) essentially tracks Section 124(4), except that it makes indemnification mandatory rather than permissible, subject to the extent that the court approval. Prior court approval is required for both indemnification and advances in which such action respect of actions brought by or proceeding is or was pending shall determine upon application that, in view of all the circumstances on behalf of the casecorporation against directors and officers. The requirement for prior court approval does not merely apply to derivative actions but also to actions on behalf of the corporation. Although advance funding should ordinarily be available, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem properwhere the corporation establishes a strong prima facie case of bad faith, even at the preliminary stages of the proceeding, advance funding will be refused. See Cytrynbaum v. Look Communications Inc., 116 OR (3d) 241.]

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify Indemnitee if be entitled to the rights of indemnification provided in this Section 4.03 if, by reason of Indemnitee's Corporate Status, Indemnitee was or is a party is, or is threatened to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that favor. Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bondsExpenses, judgments, fines and, to the fullest extent permitted by law, and amounts paid in settlement (if such settlement is approved in advance by the Corporationsettlement, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee Indemni- tee or on Indemnitee's behalf in connection with the defense such Proceeding or settlement of such action any claim, issue or suit matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to Good Faith. Notwithstanding the best interests of the Corporation and its stockholdersforegoing, except that no such indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders Corporation, unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or proceeding is or was pending Proceeding shall determine upon application have been brought that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses which portion of the settled amount, Expenses, judgments, and fines as such court shall deem deems proper.

Proceedings by or in the Right of the Corporation. The Corporation Without limiting the scope of Section 3, Indemnitee shall indemnify be entitled to the rights of indemnification provided in this Section if, by reason of Indemnitee’s Corporate Status, Indemnitee if Indemnitee was or is a party is, or is threatened to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that favor. Pursuant to this Section, Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably Expenses incurred by Indemnitee or on Indemnitee’s behalf in connection with the defense or settlement of any such action or suit Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholdersCorporation. Notwithstanding the foregoing, except that no indemnification against such Expenses shall be made in respect of any claim, issue or matter in any such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to if applicable law prohibits such indemnification; provided, however, that if applicable law so permits, indemnification against Expenses shall nevertheless be made by the Corporation and its stockholders unless in such event if, and only to the extent that that, the Court of Chancery of the State of Delaware (the “Delaware Court”), or the court in which such action Proceeding shall have been brought or proceeding is or was pending pending, shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity indemnification for such expenses which Expenses as the Delaware Court or such other court shall deem proper.

Proceedings by or in the Right of the Corporation. The Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any threatened, pending or completed action or proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, a director of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, a director or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, a director of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), against expenses (including reasonable attorneys’ ' fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee in connection with the defense or settlement of such action or suit if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation and its stockholders, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists to be liable to the Corporation in the performance of Indemnitee’s 's duty to the Corporation and its stockholders unless and only to the extent that the court in which such action or proceeding is or was pending shall determine upon application that, in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem proper.

Proceedings by or in the Right of the Corporation. The Corporation With the approval of a court, Xxxxxxxxxx shall indemnify be entitled to the rights of indemnification provided in this Section ‎1(b) if, by reason of his or her Corporate Status, the Indemnitee if Indemnitee was or is a party is, or is threatened to be made made, a party to or participant in any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, on behalf of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof. Pursuant to this Section ‎1(b), Indemnitee shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bonds, judgments, fines and, to the fullest extent permitted by law, amounts paid in settlement (if such settlement is approved in advance by the Corporation, such approval not to be unreasonably withheld), in each case to the extent all Expenses actually and reasonably incurred by Indemnitee the Indemnitee, or on the Indemnitee's behalf, in connection with such Proceeding if the defense or settlement of such action or suit if Indemnitee acted honestly and in good faith and in with a manner Indemnitee reasonably believed to be in or not opposed view to the best interests of the Corporation and its stockholdersCorporation, except and, in the case of a criminal or administrative action or proceeding that is enforced by a monetary penalty, the Indemnitee had reasonable grounds for believing that the Indemnitee's conduct was lawful; provided, however, if applicable law so provides, no indemnification against such Expenses shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over adjudged to have not met the parties and the subject matter conditions in Section 124(3) of the dispute from CBCA. [Comment: Section 124(4) permits indemnification of directors, officers, employees and agents for expenses (which no further right would include legal counsel's fees) in derivative actions and actions by the corporation and for judgments, fines or amounts paid in settlement of appeal exists such actions, with the approval of a court. However, where the individual does not fulfill the conditions in Section 124(3) (perhaps where the individual is adjudged to be liable to the Corporation corporation), Section 124(4) does not permit indemnification even for expenses. Thus, indemnification for derivative actions and actions by the corporation is significantly more limited than for third-party actions. The rationale for this distinction is that any liability for breach of fiduciary duty in a derivative action and actions by the performance of Indemnitee’s duty corporation is to make the corporation (on whose behalf the action was brought) whole for harm it suffered, and the corporation would not receive any benefit by indemnifying an individual against such liability. In effect, the corporation would be returning funds to the Corporation and its stockholders unless and only person liable to pay them. As with Section ‎1(a), Section ‎1(b) essentially tracks Section 124(4), except that it makes indemnification mandatory rather than permissible, subject to the extent that the court approval. Prior court approval is required for both indemnification and advances in which such action respect of actions brought by or proceeding is or was pending shall determine upon application that, in view of all the circumstances on behalf of the casecorporation against directors and officers. The requirement for prior court approval does not merely apply to derivative actions but also to actions on behalf of the corporation. Although advance funding should ordinarily be available, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which such court shall deem properwhere the corporation establishes a strong prima facie case of bad faith, even at the preliminary stages of the proceeding, advance funding will be refused. See Cytrynbaum v. Look Communications Inc., 116 OR (3d) 241.]

Proceedings by or in the Right of the Corporation. The Corporation Indemnitee shall indemnify Indemnitee if be entitled to the rights of indemnification provided in this Section 4.03 if, by reason of Indemnitee's Corporate Status, Indemnitee was or is a party is, or is threatened to be made made, a party to any threatened, pending or completed action or proceeding Proceeding brought by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that favor. Indemnitee is or was, or has agreed to become, an officer and/or director, as the case may be, of the Corporation, or any subsidiary of the Corporation, by reason of any actual or alleged error or misstatement or misleading statement made or suffered by Indemnitee, by reason of any action or inaction on the part of Indemnitee while an officer and/or director, as the case may be, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an officer and/or director, as the case may be, of another corporation, partnership, joint venture, trust or other enterprise (including without limitation employee benefit plans and administrative committees thereof), shall be indemnified against expenses (including reasonable attorneys’ fees and disbursements), damages (compensatory, exemplary, punitive or otherwise), costs of attachment or similar bondsExpenses, judgments, fines and, to the fullest extent permitted by law, and amounts paid in settlement (if such settlement is approved in advance by the Corporationsettlement, such approval not to be unreasonably withheld), in each case to the extent actually and reasonably incurred by Indemnitee or on Indemnitee's behalf in connection with the defense such Proceeding or settlement of such action any claim, issue or suit matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to Good Faith. Notwithstanding the best interests of the Corporation and its stockholdersforegoing, except that no such indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been finally adjudicated by a final, unappealable order or judgment by a court having jurisdiction over the parties and the subject matter of the dispute from which no further right of appeal exists adjudged to be liable to the Corporation in the performance of Indemnitee’s duty to the Corporation and its stockholders Corporation, unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or proceeding is or was pending Proceeding shall determine upon application have been brought determines that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnity for such expenses which portion of the settled amount, Expenses, judgments, and fines as such court shall deem deems proper.