(c) Expenses means all out-of-pocket fees, costs and expenses, including reasonable attorneys fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred or actually incurred in prosecuting, defending, preparing to prosecute or defend, investigating, participating, or being or preparing to be a witness in a Proceeding, or responding to, or objecting to, a request to provide discovery in a Proceeding, and the fees and costs incurred in seeking to enforce, interpret or construe an indemnification, reimbursement or payment right under this Agreement, the Companys certificate of incorporation or bylaws or similar organizational documents of any Affiliated Entity, any other agreement to which Indemnitee and the Company or any Affiliated Entity is party, any vote of stockholders or directors of the Company or any of its Affiliated Entities, the Delaware General Corporation Law (the DGCL), any other applicable law or any liability insurance policy or in connection with a determination contemplated by Section 6 of this Agreement.
(d) Independent Legal Counsel means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding anything to the contrary in the foregoing, the term Independent Legal Counsel shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitees rights under this Agreement.
(e) Position means (i) service as a director, officer, partner, trustee, fiduciary, manager or employee of the Company or of any Affiliated Entity or (ii) service at the request of the Company as a director, officer, partner, trustee, fiduciary, manager or employee of an Unaffiliated Entity; provided, however, that such request for service has been approved in writing by the Board or a committee thereof or by the Chair or Chairperson of the Board, President or the Chief Executive Officer of the Company.
(f) Proceeding means any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether civil, criminal, administrative, legislative or investigative (formal or informal), in which the Indemnitee is involved in any manner by reason of the fact of the Indemnitees Position or Positions, including as a party or a witness.
(g) Unaffiliated Entity means any corporation, limited liability company, public limited company, partnership, joint venture, trust, employee benefit plan, fund or other enterprise that is not an Affiliated Entity.
(h) Undertaking means a written undertaking by Indemnitee to repay Expenses if it shall ultimately be determined by a court of competent jurisdiction from which no appeal can be taken that Indemnitee is not entitled to be indemnified by the Company.
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