Common use of Effect of Certain Resolutions Clause in Contracts

Effect of Certain Resolutions. Neither the failure of the Company to award indemnification or to make a Determination that indemnification is payable nor an actual Determination that Indemnitee is not entitled to indemnification shall be a defense to any action commenced by Indemnitee under or with respect to this Agreement, or create an adverse presumption that Indemnitee is not entitled to indemnification under this Agreement or that Indemnitee has not met the applicable standard of conduct under the Company’s Certificate of Incorporation or Bylaws or applicable law. In addition, the termination of any Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent shall not, of itself, 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, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, however, that the foregoing shall not apply to Section 3.2 of this Agreement if any such judgment, order, conviction or plea involves Indemnitee being adjudged liable to the Company.

Effect of Certain Resolutions. Neither 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 failure of the Company event that any action, claim or proceeding to award indemnification or to make a Determination that indemnification is payable nor an actual Determination that which Indemnitee is not entitled to indemnification 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 a defense to any action commenced by Indemnitee under or with respect to this Agreement, or create an adverse presumption that Indemnitee is not entitled to indemnification under this Agreement or presumed that Indemnitee has not met been successful on the applicable standard merits or otherwise in such action, suit or proceeding. Anyone seeking to overcome this presumption shall have the burden of conduct under proof and the Company’s Certificate burden of Incorporation or Bylaws or applicable lawpersuasion by clear and convincing evidence. In addition, the The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement, settlement or conviction, or upon a plea of nolo contendere or its equivalent equivalent, shall not, not (except as otherwise expressly provided in this Agreement) of itself, 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 reasonably believed to be in or not opposed to the best interests of the Company, andCompany or, with respect to any criminal action or proceedingProceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s his conduct was unlawful; provided, however, that the foregoing shall not apply to Section 3.2 of this Agreement if any such judgment, order, conviction or plea involves Indemnitee being adjudged liable to the Company.