Common use of Failure to Act Not a Defense Clause in Contracts

Failure to Act Not a Defense. Neither the failure of the Company (including, without limitation, the Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of the indemnification of Indemnifiable Amounts, nor an actual determination by the Company (including, without limitation, the Board of Directors or any committee thereof, independent legal counsel or the Company’s stockholders) concerning the permissibility of the indemnification of Indemnifiable Amounts, shall be a defense in any judicial proceeding or arbitration initiated under Section 11(a) of this Agreement, and neither shall create a presumption that such indemnification is not permissible under this Agreement.

Failure to Act Not a Defense. Neither the failure of the Company (including, without limitation, the Board of Directors or any committee thereof, independent legal counsel, or stockholders) to make a determination concerning the permissibility of the indemnification of Indemnifiable Amounts, nor an actual determination by the Company (including, without limitation, the Board of Directors or any committee thereof, independent legal counsel or the Company’s stockholders) concerning the permissibility of the indemnification of Indemnifiable Amounts, shall be a defense in any judicial action, suit or proceeding or arbitration initiated brought under Section 11(a) of this Agreement, and neither shall create a presumption that such indemnification is not permissible under this Agreement.