Common use of Standard of Conduct Determination Clause in Contracts

Standard of Conduct Determination. For purposes of any determination of whether Indemnitee acted in accordance with the applicable standard of conduct under the DGCL that is a legally required condition to indemnification of the Indemnitee, Indemnitee shall be deemed to have acted in “good faith” if, in taking or failing to take the action in question, Indemnitee relied (i) on the records or books of account of the Company or a Subsidiary or Affiliate of the Company, including financial statements, (ii) on information, opinions, reports or statements provided to Indemnitee by the officers or other employees of the Company or a Subsidiary or Affiliate of the Company in the course of their duties, (iii) on the advice of legal counsel for the Company or a Subsidiary or Affiliate of the Company or (iv) on information or records given or reports made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate of the Company, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, or to advancement of Expenses, the Reviewing Party or the court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification hereunder.

Standard of Conduct Determination. For purposes To the extent that an Indemnifiable Claim or any portion thereof, including the defense of any determination Indemnifiable Claim or any portion thereof or defense of whether Indemnitee acted any issue or matter therein, will not have been resolved successfully on the merits or otherwise in accordance with the applicable standard favor of conduct under the DGCL that is a legally required condition to indemnification of the Indemnitee, Indemnitee shall including through a dismissal without prejudice, and the provisions of Section 8(a) are thereby inapplicable, any Standard of Conduct Determination will be deemed to have acted in “good faith” if, in taking or failing to take the action in question, Indemnitee relied made as follows: (i) on the records or books of account by a majority vote of the Company or Disinterested Directors, even if less than a Subsidiary or Affiliate quorum of the Company, including financial statementsBoard, (ii) on informationif a majority of Disinterested Directors so direct, opinionsby Independent Counsel, reports or statements provided in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee by the officers or other employees of the Company or a Subsidiary or Affiliate of the Company in the course of their duties, (iii) on the advice of legal counsel for the Company or a Subsidiary or Affiliate of the Company or (iv) on information or records given or reports made to the Company or a Subsidiary or Affiliate of the Company if there are no such Disinterested Directors, by an independent certified public accountant or by an appraiser or other expert Independent Counsel, selected by the Company or a Subsidiary or Affiliate Indemnitee, subject to the reasonable approval of the CompanyBoard, in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; provided, however, that in the event that there has been a Change in Control after the date of this Agreement, all Standard of Conduct Determinations thereafter shall be made by Independent Counsel. Indemnitee and the Company will cooperate with the person or persons making such Standard of Conduct Determination, including providing to such person or persons, 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. The Company shall indemnify and hold harmless Indemnitee against and, if requested by Indemnitee, shall reimburse Indemnitee for, or by advance to Indemnitee, within five business days of such request, any other person and all costs and expenses (including legal counsel, accountants attorneys’ and financial advisorsexperts’ fees and expenses) as to matters incurred by Indemnitee reasonably believes are within in so cooperating with the person or persons making such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf Standard of the Company. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, or to advancement of Expenses, the Reviewing Party or the court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification hereunderConduct Determination.

Standard of Conduct Determination. For purposes The Standard of any determination Conduct Determination will be made as follows (subject to the provisions of whether Indemnitee acted in accordance with the applicable standard of conduct under the DGCL that is a legally required condition to indemnification of the Indemnitee, Indemnitee shall be deemed to have acted in “good faith” if, in taking or failing to take the action in question, Indemnitee relied Section 9): (i) on the records or books of account by a majority vote of the Disinterested Directors, even if less than a quorum of the Board; (ii) if such Disinterested Directors so direct, by a majority vote of a committee of Disinterested Directors designated by a majority vote of all Disinterested Directors; or (iii) if there are no such Disinterested Directors, if the Disinterested Directors so direct, or if Indemnitee so requests by providing a written request to the Company on or before the Notification Date (which written request shall specify the Independent Counsel selected by Indemnitee), by Independent Counsel, as approved by the Board (such approval not to be unreasonably withheld, delayed or conditioned), in a Subsidiary or Affiliate written opinion addressed to the Board, a copy of which will be delivered to Indemnitee; provided, however, that if at the time of any Standard of Conduct Determination Indemnitee is neither a director nor an officer of the Company, such Standard of Conduct Determination may be made by or in the manner specified by the Board or any duly authorized committee of the Board (unless Indemnitee requests that such Standard of Conduct Determination be made by Independent Counsel, in which case such Standard of Conduct Determination will be made by Independent Counsel). Indemnitee will cooperate with the person or persons making such Standard of Conduct Determination, including financial statementsproviding to such person or persons, (ii) on informationupon reasonable advance request, opinions, reports any documentation or statements provided 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 will indemnify and hold harmless Indemnitee against and, if requested by the officers or other employees of the Company or a Subsidiary or Affiliate of the Company in the course of their dutiesIndemnitee, (iii) on the advice of legal counsel for the Company or a Subsidiary or Affiliate of the Company or (iv) on information or records given or reports made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate of the Companywill reimburse Indemnitee for, or by advance to Indemnitee, within five Business Days of such request, any other person and all costs and expenses (including legal counsel, accountants attorneys’ and financial advisorsexperts’ fees and expenses) as to matters incurred by Indemnitee reasonably believes are within in so cooperating with the person or persons making such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf Standard of the Company. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, or to advancement of Expenses, the Reviewing Party or the court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification hereunderConduct Determination.

Standard of Conduct Determination. For purposes To the extent that the provisions of Section 5(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, or if any Indemnifiable Claim is concluded without a final adjudication on the issue of liability, the Company shall nevertheless indemnify Indemnitee for Indemnifiable Losses unless a determination is made that indemnification of whether Indemnitee acted is not proper in accordance the circumstances because his or her actions in question were, at the time taken, known or believed by him or her to be clearly in conflict with the best interests of the Company or otherwise failed to satisfy any applicable standard of conduct under the DGCL that is North Carolina law (a legally required condition to indemnification “Standard of the IndemniteeConduct Determination”). Any such Standard of Conduct Determination shall be made in accordance with this paragraph. If a Change in Control shall not have occurred, or if a Change in Control shall have occurred but Indemnitee shall have requested that the Standard of Conduct Determination be deemed made pursuant to have acted in “good faith” ifthis sentence, in taking or failing to take the action in question, Indemnitee relied Standard of Conduct Determination shall be made either (i) on by the records or books Board by majority vote of account a quorum consisting of directors not at the Company or a Subsidiary or Affiliate of time parties to the Company, including financial statements, Indemnifiable Claim; (ii) on informationif a quorum cannot be obtained under subdivision (i), opinions, reports or statements provided to Indemnitee by a majority vote of a committee designated by the officers Board (in which designation directors who are parties may participate), consisting solely of two or other employees of more directors not at the Company or a Subsidiary or Affiliate of time parties to the Company in the course of their duties, Indemnifiable Claim; (iii) on by Independent Counsel selected by the advice of legal counsel for Board or its committee in the Company manner prescribed by subdivision (i) or a Subsidiary or Affiliate of the Company (ii); or (iv) on information if a quorum cannot be obtained under subdivision (i) or records given or reports a committee designated under subdivision (ii), by a majority vote of the full Board (in which directors who are parties may participate). If a Change in Control shall have occurred and Indemnitee shall not have requested that the Standard of Conduct Determination be made pursuant to the Company or a Subsidiary or Affiliate prior sentence, the Standard of the Company Conduct Determination shall be made by an independent certified public accountant or by an appraiser or other expert Independent Counsel selected by the Company or a Subsidiary or Affiliate Indemnitee. Any Standard of the Company, or Conduct Determination made by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunder, or to advancement of Expenses, the Reviewing Party or the court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof Independent Counsel shall be on delivered in a written opinion addressed to the Company Board, a copy of which shall be provided to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification hereunderIndemnitee.

Standard of Conduct Determination. For purposes of any determination of whether Indemnitee acted in accordance with the applicable standard of conduct under the DGCL that is a legally required condition to indemnification of the Indemnitee, Indemnitee shall be deemed to have acted in “good faith” if, in taking or failing to take the action in question, Indemnitee relied (i) on the records or books of account of the Company or a Subsidiary or Affiliate of the Company, including financial statements, (ii) on information, opinions, reports or statements provided to Indemnitee by the officers or other employees of the Company or a Subsidiary or Affiliate of the Company in the course of their duties, or by committees of the Board, (iii) on the advice of legal counsel for the Company or a Subsidiary or Affiliate of the Company or (iv) on information or records given or reports made to the Company or a Subsidiary or Affiliate of the Company by an independent certified public accountant or by an appraiser or other expert selected by the Company or a Subsidiary or Affiliate of the Company, or by any other person (including legal counsel, accountants and financial advisors) as to matters Indemnitee reasonably believes are within such other person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company. In connection with any determination as to whether Indemnitee is entitled to be indemnified hereunderunder this Agreement, or to advancement of Expenses, the Reviewing Party or the court shall presume that Indemnitee has satisfied the applicable standard of conduct and is entitled to indemnification or advancement of Expenses, as the case may be, and the burden of proof shall be on the Company to establish, by clear and convincing evidence, that Indemnitee is not so entitled. The provisions of this Section 8(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, the knowledge and/or actions, or failures to act, of any other person serving the Company or a Subsidiary or Affiliate of the Company as an Indemnifiable Person shall not be imputed to Indemnitee for purposes of determining the right to indemnification hereunder.