Common use of Indemnity and Recovery Actions Clause in Contracts

Indemnity and Recovery Actions. In any Indemnity Action (but not in an Indemnity Action brought to enforce a right to recover Expenses), it will be a defense that Indemnitee has not met any applicable standard for indemnification under Delaware Law. In any suit brought by the Company to recover Expenses pursuant to an Undertaking, the Company will be entitled to recover the Expenses advanced upon a Final Adjudication that Indemnitee has not met any applicable standard for indemnification under Delaware Law. Neither the failure of the Company (including its directors who are not parties to the Indemnity Action or the Recovery Action, a committee of those directors, independent legal counsel or stockholders) to have made a determination prior to the commencement of that action that indemnification of Indemnitee is proper in the circumstances because Indemnitee has met the applicable standard of conduct under Delaware Law, nor an actual determination by the Company (including its directors who are not parties to the Indemnity Action or the Recovery Action, a committee of those directors, independent legal counsel or stockholders) that Indemnitee has not met the applicable standard of conduct under Delaware Law, will create a presumption that Indemnitee has not met the applicable standard of conduct under Delaware Law or, in the case of an Indemnity Action, be a defense to that Indemnity Action. The termination of any Proceeding by judgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, will not create a presumption that Indemnitee did not meet any applicable standard of conduct or that indemnification hereunder is otherwise not permitted.