Common use of Conclusive Presumption Regarding Standards of Conduct Clause in Contracts

Conclusive Presumption Regarding Standards of Conduct. The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, as defined by Delaware law, for indemnification pursuant to this Agreement, unless a determination is made that the Indemnitee has not met such standards (i) by the Board of Directors by a majority vote of a quorum thereof consisting of directors who were not parties to the Proceeding due to which a claim is made under this Agreement, (ii) by the stockholders of the Company by majority vote of a quorum thereof consisting of stockholders who are not parties to the Proceeding due to which a claim is made under this Agreement, or (iii) in a written opinion by independent legal counsel, selection of whom has been approved by the Indemnitee in writing. No initial finding by the Board of Directors, the stockholders of the Company or any independent legal counsel shall be effective to deprive Indemnitee of the protection of this indemnity, nor shall a court or other forum to which Indemnitee may apply for enforcement of this indemnity give any weight to any such adverse finding in deciding any issue before it. Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption in reaching any contrary determination. The termination of any Proceeding by judgment, order, settlement, arbitration award or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, (a) adversely affect the rights of Indemnitee to indemnification 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 he or she reasonably believed to be in or not opposed to the best interests of the Company or (c) with respect to any criminal action or proceeding, create a presumption that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Conclusive Presumption Regarding Standards of Conduct. (a) The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, if any, as defined by Delaware law, for indemnification pursuant to this Agreement, unless a final determination is made by a court of competent jurisdiction that the Indemnitee has not met such standards (i) by the Board standards. For purposes of Directors by a majority vote of a quorum thereof consisting of directors who were not parties to the Proceeding due to which a claim is made under this Agreement, (ii) by the stockholders of the Company by majority vote of a quorum thereof consisting of stockholders who are not parties to the Proceeding due to which a claim is made under this Agreement, or (iii) in a written opinion by independent legal counsel, selection of whom has been approved by the Indemnitee in writing. No initial finding by the Board of Directors, the stockholders of the Company or any independent legal counsel shall be effective to deprive Indemnitee of the protection of this indemnity, nor shall a court or other forum to which Indemnitee may apply for enforcement of this indemnity give any weight to any such adverse finding in deciding any issue before it. Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption in reaching any contrary determination. The termination of any Proceeding claim, action, suit, or proceeding, by judgment, order, settlementsettlement (whether with or without court approval), arbitration award or conviction, or upon a plea of nolo contendere contendere, or its equivalent, shall not, of itself, (a) adversely affect the rights of Indemnitee to indemnification except as indemnification may be expressly prohibited under this Agreement, (b) create a presumption that the Indemnitee did not act meet any particular standard of conduct or that a court has determined that indemnification is not permitted by applicable law. (b) Notwithstanding the foregoing provisions of Section 5(a) of this Agreement, in good faith and the event of any Proceeding (other than a Proceeding by or in the right of the Company) in which the claimant alleges or has alleged specific material acts by the Indemnitee of actual fraud, personal dishonesty, misappropriation, or breach of the duty of loyalty, in each case for the direct or indirect personal benefit of the Indemnitee, then the Company may rebut the presumption that the Indemnitee has met the relevant standards of conduct for indemnification under this Agreement by obtaining, at its expense, a manner which he or she reasonably believed to be in or not opposed written opinion of Independent Legal Counsel, to the best interests effect that, assuming the truth of the facts alleged by the claimant, the Indemnitee, and all other former or current officers and directors who are similarly situated in the context of the Proceeding and who have had a similar involvement in the alleged acts have not met such standards. Receipt by the Company or (cof such an opinion shall, accordingly and notwithstanding the absence of a final determination by a court of competent jurisdiction as contemplated by Section 5(a) of this Agreement, permit the Company to make a determination that the Indemnitee has not met the relevant standards of conduct, provided that any such determination is also made with respect to any criminal action or proceedingall other persons who, the opinion states, did not meet such standards. Neither the receipt of a written opinion from Independent Legal Counsel nor the making by the Company of a determination pursuant to this Section 5(b) shall create a presumption that the Indemnitee had reasonable cause did not meet any particular standards of conduct or that the Indemnitee is not entitled to believe that his conduct was unlawfulindemnification under this Agreement or otherwise. Nothing herein, however, shall prevent the Company from presenting such opinion as evidence or the Independent Legal Counsel as a witness in any court case.

Conclusive Presumption Regarding Standards of Conduct. (a) The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, if any, as defined by Delaware law, for indemnification pursuant to this Agreement, unless a final determination is made by a court of competent jurisdiction that the Indemnitee has not met such standards (i) by the Board standards. For purposes of Directors by a majority vote of a quorum thereof consisting of directors who were not parties to the Proceeding due to which a claim is made under this Agreement, (ii) by the stockholders of the Company by majority vote of a quorum thereof consisting of stockholders who are not parties to the Proceeding due to which a claim is made under this Agreement, or (iii) in a written opinion by independent legal counsel, selection of whom has been approved by the Indemnitee in writing. No initial finding by the Board of Directors, the stockholders of the Company or any independent legal counsel shall be effective to deprive Indemnitee of the protection of this indemnity, nor shall a court or other forum to which Indemnitee may apply for enforcement of this indemnity give any weight to any such adverse finding in deciding any issue before it. Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption in reaching any contrary determination. The termination of any Proceeding claim, action, suit, or proceeding, by judgment, order, settlementsettlement (whether with or without court approval), arbitration award or conviction, or upon a plea of nolo contendere contendere, or its equivalent, shall not, of itself, (a) adversely affect the rights of Indemnitee to indemnification except as indemnification may be expressly prohibited under this Agreement, (b) create a presumption that the Indemnitee did not act meet any particular standard of conduct or that a court has determined that indemnification is not permitted by applicable law. (b) Notwithstanding the foregoing provisions of Section 5(a) of this Agreement, in good faith and the event of any Proceeding (other than a Proceeding by or in the right of the Company) in which the claimant alleges or has alleged specific material acts by the Indemnitee of actual fraud, personal dishonesty, misappropriation, or breach of the duty of loyalty, in each case for the direct or indirect personal benefit of the Indemnitee, then the Company may rebut the presumption that the Indemnitee has met the relevant standards of conduct for indemnification under this Agreement by obtaining, at its expense, a manner which he or she reasonably believed to be in or not opposed written opinion of Independent Legal Counsel, to the best interests effect that, assuming the truth of the facts alleged by the claimant, the Indemnitee, and all other persons being indemnified by the Company or (cwho are similarly situated in the context of the Proceeding and who have had a similar involvement in the alleged acts have not met such standards. Receipt by the Company of such an opinion shall, accordingly and notwithstanding the absence of a final determination by a court of competent jurisdiction as contemplated by Section 5(a) of this Agreement, permit the Company to make a determination that the Indemnitee has not met the relevant standards of conduct, provided that any such determination is also made with respect to any criminal action or proceedingall other persons who, the opinion states, did not meet such standards. Neither the receipt of a written opinion from Independent Legal Counsel nor the making by the Company of a determination pursuant to this Section 5(b) shall create a presumption that the Indemnitee had reasonable cause did not meet any particular standards of conduct or that the Indemnitee is not entitled to believe that his conduct was unlawfulindemnification under this Agreement or otherwise. Nothing herein, however, shall prevent the Company from presenting such opinion as evidence or the Independent Legal Counsel as a witness in any court case.

Conclusive Presumption Regarding Standards of Conduct. (a) The Indemnitee shall be conclusively presumed to have met the relevant standards of conduct, if any, as defined by Delaware law, for indemnification pursuant to this Agreement, unless a final determination is made by a court of competent jurisdiction that the Indemnitee has not met such standards (i) by the Board standards. For purposes of Directors by a majority vote of a quorum thereof consisting of directors who were not parties to the Proceeding due to which a claim is made under this Agreement, (ii) by the stockholders of the Company by majority vote of a quorum thereof consisting of stockholders who are not parties to the Proceeding due to which a claim is made under this Agreement, or (iii) in a written opinion by independent legal counsel, selection of whom has been approved by the Indemnitee in writing. No initial finding by the Board of Directors, the stockholders of the Company or any independent legal counsel shall be effective to deprive Indemnitee of the protection of this indemnity, nor shall a court or other forum to which Indemnitee may apply for enforcement of this indemnity give any weight to any such adverse finding in deciding any issue before it. Upon making a request for indemnification, Indemnitee shall be presumed to be entitled to indemnification under this Agreement and the Company shall have the burden of proof to overcome that presumption in reaching any contrary determination. The termination of any Proceeding claim, action, suit or proceeding, by judgment, order, settlement, arbitration award settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere contendere, or its equivalent, shall not, of itself, (a) adversely affect the rights of Indemnitee to indemnification except as indemnification may be expressly prohibited under this Agreement, (b) create a presumption that the Indemnitee did not act meet any particular standard of conduct or that a court has determined that indemnification is not permitted by applicable law. (b) Notwithstanding the foregoing provisions of Section 5(a) of this Agreement, in good faith and the event of any Proceeding (other than a Proceeding by or in the right of the Company) in which the claimant alleges or has alleged specific material acts by the Indemnitee of actual fraud, personal dishonesty, misappropriation or breach of the duty of loyalty, in each case for the direct or indirect personal benefit of the Indemnitee, then the Company may rebut the presumption that the Indemnitee has met the relevant standards of conduct for indemnification under this Agreement by obtaining, at its expense, a manner which he or she reasonably believed to be in or not opposed written opinion of Independent Legal Counsel, to the best interests effect that, assuming the truth of the facts alleged by the claimant, the Indemnitee and all other former or current officers and directors who are similarly situated in the context of the Proceeding and who have had a similar involvement in the alleged acts have not met such standards. Receipt by the Company or (cof such an opinion shall, accordingly and notwithstanding the absence of a final determination by a court of competent jurisdiction as contemplated by Section 5(a) of this Agreement, permit the Company to make a determination that the Indemnitee has not met the relevant standards of conduct, provided that any such determination is also made with respect to any criminal action or proceedingall other persons who, the opinion states, did not meet such standards. Neither the receipt of a written opinion from Independent Legal Counsel nor the making by the Company of a determination pursuant to this Section 5(b) shall create a presumption that the Indemnitee had reasonable cause did not meet any particular standards of conduct or that the Indemnitee is not entitled to believe that his conduct was unlawfulindemnification under this Agreement or otherwise. Nothing herein, however, shall prevent the Company from presenting such opinion as evidence or the Independent Legal Counsel as a witness in any court case.