Presumptions and Effect of Certain Proceedings Clause Example with 165 Variations from Business Contracts
This page contains Presumptions and Effect of Certain Proceedings clauses in business contracts and legal agreements. An example clause is provided at the top of the page, followed by clauses with minor variations. You can view the text differences by selecting the "Show Differences" option.
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination cont...rary to that presumption. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. 8 (d) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member. The provisions of this Section 14(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.View More
Variations of a "Presumptions and Effect of Certain Proceedings" Clause from Business Contracts
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) 10(a) of this Agreement, and the Company shall shall, to the fullest extent not prohibited by law, have the burden of proof to over...come that presumption in connection with the making by any such person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's his or her conduct was unlawful. 8 (d) (c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based to the extent Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements, or on (ii) information supplied to Indemnitee by the directors, managers, or officers of the Enterprise in the course of their duties, or on (iii) the advice of legal counsel for the Enterprise, Enterprise or its Board, board of directors or counsel selected by any committee of the Board board of directors or any director, trustee, general partner, manager, or managing member, or on (iv) information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, Enterprise by an independent certified public accountant or by accountant, an appraiser appraiser, investment banker or other expert selected with reasonable care by the Enterprise, Enterprise or its Board, board of directors or any committee of the Board or any director, trustee, general partner, manager, or managing member. board of directors. The provisions of this Section 14(d) 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, Agreement, and it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof. (d) Neither the knowledge, actions nor failure to act, act of any other Representative director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. -11- (e) The Company acknowledges that a settlement or other disposition short of final judgment may be successful if it permits a party to avoid expense, delay, distraction, disruption and uncertainty. In the event that any action, claim or proceeding to which Indemnitee is a party is resolved in any manner other than by adverse judgment against Indemnitee (including, without limitation, settlement of such action, claim or proceeding with or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of proof. 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Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, person or persons or entity making such determination shall will, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) 7 of this Agreement, and the Company shall will, to the fullest extent not prohibited by law, have the burden of proof to ...overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 determination of this Agreement to determine whether Indemnitee is entitled Indemnitee's entitlement to indemnification shall has not have made a determination pursuant to Section 7 within thirty (30) 60 days after the later of (i) receipt by the Company of Indemnitee's written request for indemnification pursuant to Section 7 and (ii) the request therefor, final disposition of the proceeding for which Indemnitee requested indemnification (the "Determination Period"), the requisite determination of entitlement to indemnification shall, will, to the fullest extent permitted not prohibited by law, be deemed to have been made made; and Indemnitee shall will be entitled to such indemnification, absent (i) (A) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) (B) a final judicial determination that any or all prohibition of such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period law. The Determination Period may be extended for a reasonable time, not to exceed an additional fifteen (15) 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. thereto; and provided, further, the Determination Period may be extended an additional 15 days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(d) of this Agreement. 5 (c) The termination of any Proceeding proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. 8 (d) For purposes of any determination of good faith, Indemnitee shall will be deemed to have acted in good faith if Indemnitee's action is Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, statements; or on information supplied to Indemnitee by the directors, managers, directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, duties; or on the advice of legal counsel for the Enterprise, Company, its Board, any committee of the Board subsidiaries, or any director, trustee, general partner, manager, or managing member, an Enterprise; or on information or records given or reports made to the Enterprise, its Board, any committee of the Board Company or any director, trustee, general partner, manager, or managing member, an Enterprise by an independent certified public accountant or by an appraiser appraiser, financial advisor or other expert selected with reasonable care by the Enterprise, its Board, any committee or on behalf of the Board Company, its subsidiaries, or any director, trustee, general partner, manager, or managing member. an Enterprise. Further, Indemnitee will be deemed to have acted in a manner "not opposed to the best interests of the Company," as referred to in this Agreement, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 14(d) shall 8(d) are not be deemed to be exclusive or to and do not limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall may not be imputed to Indemnitee for purposes of determining the Indemnitee's right to indemnification under this Agreement. View More
Presumptions and Effect of Certain Proceedings. (a) 6.1 Presumption and Burden of Proof in Favor of Indemnitee. In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) 4.1 of this Agreement, and the Company shall shall, to the fullest exte...nt not prohibited by law, have the burden of proof to overcome that presumption in connection with the making by any such person, persons or entity of any determination contrary to that presumption. Neither Without limiting the foregoing, neither (i) the failure of the Company (including by Company, its board of directors, any committee or subgroup of the Disinterested Directors board of directors, Independent Counsel or Independent Counsel) stockholders to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification of Indemnitee is proper in permitted under the circumstances because Indemnitee has met the applicable standard of conduct, nor (ii) an actual determination by the Company (including by Company, its board of directors, any committee or subgroup of the Disinterested Directors board of directors, Independent Counsel or Independent Counsel) stockholders that Indemnitee has not met such the applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has or has not met the applicable standard of conduct. (b) If conduct or is not entitled to indemnification or the person, persons or entity empowered or selected under advancement of Expenses. In the event that a determination shall have been made pursuant to Section 13 5 of this Agreement to determine whether that Indemnitee is not entitled to indemnification (or in the event that no determination has been made as described in clause (i) above), any judicial proceeding or arbitration commenced pursuant to Section 7.1 shall be conducted in all respects as a de novo trial, or arbitration, on the merits, and Indemnitee shall not have made a determination within thirty (30) days after receipt be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to Section 7.1, the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted not prohibited by law, be deemed to have been made and the burden of proving Indemnitee shall be is not entitled to such indemnification, absent (i) a misstatement by Indemnitee indemnification or advancement of a material fact, or an omission Expenses, as the case may be. 6.2 Effect of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. (c) Certain Proceedings. The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's his or her conduct was unlawful. 8 (d) 7 6.3 Reliance by Indemnitee. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based to the extent Indemnitee relied in good faith on (i) the records or books of account of the Enterprise, including financial statements, or on (ii) information supplied to Indemnitee by the directors, managers, or officers of the Enterprise in the course of their duties, or on (iii) the advice of legal counsel for the Enterprise, Enterprise or its Board, board of directors or counsel selected by any committee of the Board board of directors or any director, trustee, general partner, manager, or managing member, or on (iv) information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, Enterprise by an independent certified public accountant or by accountant, an appraiser appraiser, investment banker or other expert selected with reasonable care by the Enterprise, Enterprise or its Board, board of directors or any committee of the Board or any director, trustee, general partner, manager, or managing member. board of directors. The provisions of this Section 14(d) 6.3 shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The 6.4 No Imputed Knowledge. Neither the knowledge and/or actions, or actions of, nor the failure to act, of act by, any other Representative director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the Indemnitee's right to indemnification under this Agreement. View More
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement determining whether Indemnitee is entitled to indemnification hereunder, under this Agreement, the person, person or persons or entity making such the determination shall must presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) of this Agreement, and the Company shall have has the burden of proof to overcome that presumption...presumption. Moreover, if at any time during the two (2) year period prior to the date of any written application for indemnification submitted by Indemnitee in connection with a particular Proceeding or other matter there shall have occurred a Change in Control, the making foregoing presumption may only be overcome by any person, persons or entity of any determination contrary to that presumption. clear and convincing evidence. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification following is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the an action seeking a determination granting indemnity to Indemnitee or create creates a presumption that Indemnitee has not met the applicable standard of conduct: (i) the failure of the Company (including its directors or Independent Counsel) to have made a determination before the beginning of an action seeking a ruling that indemnification is proper nor (ii) an actual determination by the Company (including its directors or Independent Counsel) that Indemnitee has not met the applicable standard of conduct. 7 (b) If the person, persons or entity empowered or selected under Section 13 10 of this Agreement to determine whether Indemnitee is entitled to indemnification shall has not have made a determination within thirty (30) days after receipt by the Company of the request therefor, for it, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, shall be deemed to have been made and Indemnitee shall be is entitled to such indemnification, absent (i) a an intentional misstatement by Indemnitee of a material fact, fact or an omission of a material fact necessary to make Indemnitee's statement his or her statements not materially misleading, misleading made in connection with the request for indemnification, indemnification (which misstatement or omission is shown by the Company to be of sufficient importance that it would likely alter the applicable determination) or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day law. The thirty (30) day period may be extended for a reasonable time, not to exceed an additional fifteen (15) additional days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such the additional time for the obtaining or evaluating of documentation and/or information relating thereto. documents or information. (c) The termination of any Proceeding or of any claim, issue or matter claim therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall does not (except as otherwise expressly provided elsewhere in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not meet any particular standard of conduct, did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's his or her conduct was unlawful. 8 (d) For purposes of any determination of In determining good faith, Indemnitee shall must be deemed to have acted in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company if Indemnitee's action is based on the records or books of account of the Enterprise, Company, including financial statements, or on information information, opinions, reports or statements supplied to Indemnitee by the directors, managers, directors or officers of the Enterprise Company or other enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of Company or the Board or any director, trustee, general partner, manager, or managing member, enterprise or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member. The provisions of this Section 14(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. expert. (e) The knowledge and/or actions, and actions or failure failures to act, act of any other Representative director, officer, trustee, partner, member, fiduciary, agent or employee of the Enterprise Company or other enterprise shall not be imputed to Indemnitee for the purposes of determining the his or her right to indemnification under this Agreement. indemnification. View More
Presumptions and Effect of Certain Proceedings. (a) In Upon making a determination with respect an Indemnification Request, Indemnitee shall be presumed to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is be entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) of this Agreement, and the Company shall have the burden of proof by clear and convincing evidence to overcome that pr...esumption in connection with the making by reaching any person, persons or entity of any determination contrary to that presumption. determination. Neither the failure of the Company (including by the Disinterested Directors its directors, Independent Counsel or Independent Counsel) stockholders) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors its directors, Independent Counsel or Independent Counsel) stockholders) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. (c) The termination of any Proceeding or of any claim, issue or matter therein, against Indemnitee by judgment, order, settlement settlement, arbitration award or conviction, or upon a plea of nolo contendere or its equivalent, equivalent by Indemnitee, shall not (except as otherwise expressly provided in this Agreement) not, of itself itself, (a) adversely affect the right rights of Indemnitee to indemnification or except as indemnification may be expressly prohibited under this Agreement, (b) create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Company or, or (c) with -6- respect to any criminal Proceeding, action or proceeding, create a presumption that Indemnitee had reasonable cause to believe that Indemnitee's his or her conduct was unlawful. 8 (d) The knowledge and/or actions, or failure to act, of any director, officer, or agent of the Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee's action is based on the records or books of account of the Enterprise, Company, including financial statements, or on information supplied to Indemnitee by the directors, managers, or officers of the Enterprise Company in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, Company or the Board or counsel selected by any committee of the Board or any director, trustee, general partner, manager, or managing member, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, Company by an independent certified public accountant or by an appraiser appraiser, investment banker or other expert selected with reasonable care by the Enterprise, its Board, Company or the Board or any committee of the Board or any director, trustee, general partner, manager, or managing member. Board. The provisions of this Section 14(d) 7 shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.View More
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall shall, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) of this Agreement, and the Company shall shall, to the fullest extent not prohibited by law, have the burden of proof to overcome t...hat presumption in connection with the making by any such person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly -7- provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's his or her conduct was unlawful. 8 (d) (c) For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if to the extent Indemnitee's action is based on (i) the records or books of account of the Enterprise, including financial statements, or on (ii) information supplied to Indemnitee by the directors, managers, or officers of the Enterprise in the course of their duties, or on (iii) the advice of legal counsel for the Enterprise, Enterprise or its Board, board of directors or counsel selected by any committee of the Board board of directors or any director, trustee, general partner, manager, or managing member, or on (iv) information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager, or managing member, Enterprise by an independent certified public accountant or by accountant, an appraiser appraiser, investment banker or other expert selected with reasonable care by the Enterprise, Enterprise or its Board, board of directors or any committee of the Board or any director, trustee, general partner, manager, or managing member. board of directors. The provisions of this Section 14(d) 11(c) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, Whether or not the foregoing provisions of this Section 11(c) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall, to the fullest extent not prohibited by law, have the burden of proof to overcome such presumption. (d) Neither the knowledge, actions nor failure to act, act of any other Representative director, officer, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. View More
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, person or persons or entity making such determination shall will, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) 7 of this Agreement, and the Company shall will, to the fullest extent not prohibited by law, have the burden of proof to ...overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. 5 (b) If the person, persons or entity empowered or selected under Section 13 determination of this Agreement to determine whether Indemnitee is entitled the Indemnitee's entitlement to indemnification shall has not have made a determination pursuant to Section 7 within thirty (30) sixty (60) days after the later of (i) receipt by the Company of Indemnitee's request for indemnification pursuant to Section 7 and (ii) the request therefor, final disposition of the Proceeding for which Indemnitee requested Indemnification (the "Determination Period"), the requisite determination of entitlement to indemnification shall, will, to the fullest extent permitted not prohibited by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all prohibition of such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period law. The Determination Period may be extended for a reasonable time, not to exceed an additional fifteen (15) thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(c) of this Agreement. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. 8 (d) For purposes of any determination of good faith, Indemnitee shall will be deemed to have acted in good faith if Indemnitee's action is Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, Company, its Board, any committee of the Board subsidiaries, or any director, trustee, general partner, manager, or managing member, an Enterprise or on information or records given or reports made to the Enterprise, its Board, any committee of the Board Company or any director, trustee, general partner, manager, or managing member, an Enterprise by an independent certified public accountant or by an appraiser appraiser, financial advisor or other expert selected with reasonable care by the Enterprise, its Board, any committee or on behalf of the Board Company, its subsidiaries, or any director, trustee, general partner, manager, or managing member. an Enterprise. Further, Indemnitee will be deemed to have acted in a manner "not opposed to the best interests of the Company," as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 14(d) shall 8(d) is not be deemed to be exclusive or to and does not limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall may not be imputed to Indemnitee for purposes of determining the Indemnitee's right to indemnification under this Agreement. View More
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, person or persons or entity making such determination shall will, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) 7 of this Agreement, and the Company shall will, to the fullest extent not prohibited by law, have the burden of proof to ...overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 determination of this Agreement to determine whether Indemnitee is entitled the Indemnitee's entitlement to indemnification shall has not have made a determination pursuant to Section 7 within thirty (30) sixty (60) days after the later of (i) receipt by the Company of Indemnitee's request for indemnification pursuant to Section 7 and (ii) the request therefor, final disposition of the Proceeding 5 for which Indemnitee requested Indemnification (the "Determination Period"), the requisite determination of entitlement to indemnification shall, will, to the fullest extent permitted not prohibited by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all prohibition of such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period law. The Determination Period may be extended for a reasonable time, not to exceed an additional fifteen (15) thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(c) of this Agreement. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. 8 (d) For purposes of any determination of good faith, Indemnitee shall will be deemed to have acted in good faith if Indemnitee's action is Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, Company, its Board, any committee of the Board subsidiaries, or any director, trustee, general partner, manager, or managing member, an Enterprise or on information or records given or reports made to the Enterprise, its Board, any committee of the Board Company or any director, trustee, general partner, manager, or managing member, an Enterprise by an independent certified public accountant or by an appraiser appraiser, financial advisor or other expert selected with reasonable care by the Enterprise, its Board, any committee or on behalf of the Board Company, its subsidiaries, or any director, trustee, general partner, manager, or managing member. an Enterprise. Further, Indemnitee will be deemed to have acted in a manner "not opposed to the best interests of the Company," as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 14(d) shall 8(d) is not be deemed to be exclusive or to and does not limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall may not be imputed to Indemnitee for purposes of determining the Indemnitee's right to indemnification under this Agreement. View More
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, person or persons or entity making such determination shall will, to the fullest extent not prohibited by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) 7 of this Agreement, and the Company shall will, to the fullest extent not prohibited by law, have the burden of proof to ...overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under Section 13 determination of this Agreement to determine whether Indemnitee is entitled the Indemnitee's entitlement to indemnification shall has not have made a determination pursuant to Section 7 within thirty (30) sixty (60) days after the later of (i) receipt by the Company of Indemnitee's request for indemnification pursuant to Section 7 and (ii) the request therefor, final disposition of the Proceeding for which Indemnitee requested Indemnification (the "Determination Period"), the requisite determination of entitlement to indemnification shall, will, to the fullest extent permitted not prohibited by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all prohibition of such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period law. The Determination Period may be extended for a reasonable time, not to exceed an additional fifteen (15) thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 7(c) of this Agreement. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. 8 (d) For purposes of any determination of good faith, Indemnitee shall will be deemed to have acted in good faith if Indemnitee's action is Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, Company, its Board, any committee of the Board subsidiaries, or any director, trustee, general partner, manager, or managing member, an Enterprise or on information or records given or reports made to the Enterprise, its Board, any committee of the Board Company or any director, trustee, general partner, manager, or managing member, an Enterprise by an independent certified public accountant or by an appraiser appraiser, 7. financial advisor or other expert selected with reasonable care by the Enterprise, its Board, any committee or on behalf of the Board Company, its subsidiaries, or any director, trustee, general partner, manager, or managing member. an Enterprise. Further, Indemnitee will be deemed to have acted in a manner "not opposed to the best interests of the Company," as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 14(d) shall 8(d) is not be deemed to be exclusive or to and does not limit in any way the other circumstances in which the Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall may not be imputed to Indemnitee for purposes of determining the Indemnitee's right to indemnification under this Agreement. View More
Presumptions and Effect of Certain Proceedings. (a) In making a determination with respect to entitlement to indemnification hereunder, the person, person or persons or entity making such determination shall will, to the fullest extent permitted by law, presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 12(b) of this Agreement, 12(a), and the Company shall will, to the fullest extent permitted by law, have the burden of proof to overc...ome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. (b) If the person, persons or entity empowered or selected under determination of Indemnitee's entitlement to indemnification has not been made pursuant to Section 13 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) sixty (60) days after the later of (i) receipt by the Company of Indemnitee's request for indemnification pursuant to Section 12(a) and (ii) the request therefor, final disposition of the Proceeding for which Indemnitee requested indemnification (the "Determination Period"), the requisite determination of entitlement to indemnification shall, will, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee's statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period law. The Determination Period may be extended for a reasonable time, not to exceed an additional fifteen (15) thirty (30) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. thereto; and provided, further, the Determination Period may be extended an additional fifteen (15) days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 13(a)(iv). (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests interest of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee's conduct was unlawful. 8 (d) For purposes of any determination of good faith, Indemnitee shall will be deemed to have acted in good faith if Indemnitee's action is Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by -9- the directors, managers, directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, Company, its Board, any committee of the Board subsidiaries, or any director, trustee, general partner, manager, or managing member, an Enterprise or on information or records given or reports made to the Enterprise, its Board, any committee of the Board Company or any director, trustee, general partner, manager, or managing member, an Enterprise by an independent certified public accountant or by an appraiser appraiser, financial advisor or other expert selected with reasonable care by the Enterprise, its Board, any committee or on behalf of the Board Company, its subsidiaries, or any director, trustee, general partner, manager, or managing member. an Enterprise. Further, Indemnitee will be deemed to have acted in a manner "not opposed to the best interest of the Company," as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interest of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 14(d) shall are not be deemed to be exclusive or to and do not limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. (e) The knowledge and/or actions, or failure to act, of any other Representative director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise shall may not be imputed to Indemnitee for purposes of determining the Indemnitee's right to indemnification under this Agreement. View More
