Common use of No Presumptions; Burden of Proof Clause in Contracts

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable law, the termination of any Claim by judgement, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified is not permitted. In addition, neither the failure of any Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified, shall be a defence to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnified, the burden of proof shall be on the Company, by clear and convincing evidence, to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defense.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by applicable law. In addition, neither it shall be a defense to any such action by the Indemnitee to recover any unpaid amount of Losses or Expenses (other than an action brought to enforce a claim for Losses or Expenses incurred in defending any proceeding in advance of its final disposition where the required undertaking, if any is required, has been tendered to the Company) that the Indemnitee has not met the standard of conduct which makes it permissible under the Delaware General Corporation Law to indemnify the Indemnitee for the amount claimed, but the burden of proving such defense shall be on the Company. Neither the failure of any Reviewing Party the Company (including its directors who are not parties to such action, a committee of such directors, Independent Legal Counsel or its stockholders) to have made a determination as prior to whether the commencement of such action that indemnification of the Indemnitee is proper in the circumstances because he or she has met any particular the applicable standard of conduct or had any particular beliefset forth in the Delaware General Corporation Law, nor an actual determination by any Reviewing Party the Company (including its directors who are not parties to such action, a committee of such directors, Independent Legal Counsel or its stockholders) that the Indemnitee has not met such applicable standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnifiedconduct, shall be a defence defense to Indemnitee’s claim the action or create a presumption that the Indemnitee has not met any particular the applicable standard of conduct or did not have any particular beliefconduct. In connection with any determination by any the Reviewing Party or otherwise as to whether the Indemnitee is entitled to be Indemnifiedindemnified hereunder, the burden of proof shall be on the Company, by clear and convincing evidence, Company to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defense.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim in a manner adverse to Indemnitee, either by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not not, by itself, create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by this Agreement or the Operative Materials, unless there has been a specific finding of fact, conclusion of law or an admission by Indemnitee as part of the termination of such Claim with respect to such standard of conduct, belief or permissibility of indemnification. In addition, neither the failure of any Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee pursuant to Section 3(a) to secure a judicial determination that Indemnitee should be Indemnifiedindemnified under this Agreement under the Operative Materials, shall be a defence defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether the Indemnitee is entitled to be Indemnifiedindemnified hereunder under the Operative Materials, the burden of proof shall be on the Company, by clear and convincing evidence, Company to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defense.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim claim or action by judgementjudgment, order, settlement (whether with or without court approval) or conviction, conviction or upon a plea of nolo contenderecontendere , or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that be treated as a decision of a court has determined that indemnification is not permitted by this Agreement or applicable law. If a claim for indemnification under this Agreement is not timely paid by the right Company, Indemnitee may, but need not, bring an action against the Company to recover the unpaid amount of the claim and, subject to Section 13 of this Agreement, Indemnitee shall also be entitled to be Indemnified is not permittedpaid for the expenses (including attorneys' fees) of bringing the action. In additionThe Company may assert, neither the failure as a defense to any such action (other than an action brought to enforce a claim for expenses incurred in connection with any action or proceeding in advance of any Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular beliefits final disposition), nor an actual determination by any Reviewing Party that Indemnitee has not met such the required standard of conduct or did not have such belief, prior for the Company to indemnify Indemnitee for the commencement amount claimed. The burden of legal proceedings by proof shall be on Indemnitee to secure establish, by a judicial preponderance of the evidence, that he is entitled to indemnification. If the Company contests Indemnitee's right to indemnification, the decision shall be reserved for a court; and neither the Company's failure to determine that indemnification is proper nor the Company's determination that Indemnitee should be Indemnified, indemnification is not proper shall be a defence to Indemnitee’s claim or create a presumption that Indemnitee has or has not met any particular the applicable standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnified, the burden of proof shall be on the Company, by clear and convincing evidence, to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defenseconduct.

No Presumptions; Burden of Proof. For purposes of this DeedAgreement, to the fullest extent permitted by applicable lawthe laws of the State of Delaware, the termination of any Claim by judgement, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified is not permitted. In addition, neither the failure of any Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified, shall be a defence to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnified, the burden of proof shall be on the Company, by clear and convincing evidence, to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this DeedAgreement) that Indemnitee has not met the indemnification sought by Indemnitee standard of conduct set forth in such legal proceeding is not available under applicable lawthe second sentence of Clause 2.1.1 of this Agreement, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defense.

No Presumptions; Burden of Proof. For purposes In any action brought under Section 5(a) hereof, it shall be a defense to a claim for indemnification pursuant to Sections 2(a) or 2(b) hereof (other than an action brought to enforce a claim for Expenses incurred in defending any Proceeding in advance of this Deedits final disposition where the Undertaking, if any is required, has been tendered to the fullest extent permitted by applicable law, Company) that the termination of any Claim by judgement, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall Indemnitee has not create a presumption that Indemnitee did not meet any particular standard met the standards of conduct which make it permissible under the GCL for the Company to indemnify the Indemnitee for the amount claimed, but the burden or have any particular belief or that a court has determined that proving such defense shall be on the right to be Indemnified is not permittedCompany. In addition, neither the The failure of any Reviewing Party the Company (including the Board, independent legal counsel or the Stockholders) to have made a determination as prior to whether commencement of such action that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met any particular the applicable standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that Indemnitee has set forth in the GCL shall not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified, shall be a defence defense to such Indemnitee’s claim or create a presumption that the Indemnitee has not met any particular the applicable standard of conduct or did conduct. In the event that a determination shall have been made pursuant to Section 2(d) of this Agreement that the Indemnitee is not have entitled to indemnification, any particular beliefjudicial proceeding commenced pursuant to this Section 5 shall be conducted in all respects as a de novo trial, on the merits, and the Indemnitee shall not be prejudiced by reason of that adverse determination. In connection with any determination by any Reviewing Party the Company (including the Board, independent legal counsel or the Stockholders) or otherwise as to whether the Indemnitee is entitled to be Indemnifiedindemnification or Expense advances hereunder, the burden of proof shall be on the CompanyCompany to establish that the Indemnitee is not so entitled, by clear and convincing evidence. For purposes of any determination of good faith, to establish that the Indemnitee is not so entitled. It shall be a defense deemed to any have acted in good faith if the Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to the Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on counsel for the Company, by clear and convincing evidencean independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company. The knowledge and/or actions, or failure to establish such defenseact, of any other director, officer, agent or employee of the Company shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 5(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by applicable law. In addition, neither the failure of any the Reviewing Party or any other person to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any the Reviewing Party or any other person that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnifiedindemnified under applicable law, shall be a defence defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any the Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnifiedindemnified hereunder, the Reviewing Party or other person or persons or entity making such determination shall presume that the Indemnitee is entitled to indemnification under this Agreement and anyone seeking to overcome this presumption shall have the burden of proof proof. The Company shall be on precluded from asserting in any judicial proceeding commenced under this Agreement that the Company, by clear procedures and convincing evidence, to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 presumptions of this Deed) Agreement are not valid, binding and enforceable and shall stipulate in any such court that the indemnification sought Company is bound by Indemnitee in such legal proceeding is not available under applicable law, but all the burden provisions of proof shall be on the Company, by clear and convincing evidence, to establish such defensethis Agreement.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Indemnifiable Claim by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that any Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by applicable law. In addition, neither the failure of any the Reviewing Party to have made a determination as to whether an Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any the Reviewing Party that the Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that the Indemnitee should be Indemnifiedindemnified under applicable law, shall be a defence defense to the Indemnitee’s claim or create a presumption that the Indemnitee has not met any particular standard of conduct or did not have any particular belief. Additionally, 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 connection 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 any determination by any Reviewing Party or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise as in such action, suit or proceeding. Anyone seeking to whether overcome this presumption and anyone seeking to determine that the Indemnitee is not entitled to be IndemnifiedIndemnification hereunder, shall have the burden of proof shall be on and the Companyburden of persuasion, by clear and convincing evidence, to establish that Indemnitee is not so entitled. It shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defense.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of guilty or nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by Delaware law. In addition, neither the failure of any the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnifiedindemnified under Delaware law, shall be a defence defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any the Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnifiedindemnified hereunder, the burden of proof shall be on the Company, by clear and convincing evidence, Corporation to establish that Indemnitee is not so entitled. It Indemnitee shall be a defense deemed to any legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee have acted in such legal proceeding good faith, without limitation, where Indemnitee’s action is not available under applicable law, but the burden of proof shall be based on the Companyrecords or books of account of the Corporation, including financial statements, or on information supplied to Indemnitee by clear and convincing evidencethe officers of the Corporation in the course of their duties, or on the advice of legal counsel for the Corporation or on information or records given or reports made to establish such defensethe Corporation by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Corporation. In addition, the knowledge and/or actions, or failure to act, of any other director, officer, agent or employee of the Corporation shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim Covered Event by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, contendere or its equivalent, shall not create a presumption that Indemnitee did not Indemnified Person failed to meet any particular standard of conduct or have lacked any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by this Agreement or applicable law. In addition, neither Neither the failure of any Reviewing Party to have made a determination as to determine whether Indemnitee Indemnified Person has met any particular standard of conduct or had any particular belief, nor an a Reviewing Party’s actual determination by any Reviewing Party that Indemnitee Indemnified Person has not met failed to meet such standard of conduct or did not have lacked such belief, shall serve, prior to the commencement of legal proceedings by Indemnitee Indemnified Person to secure a judicial determination that Indemnitee Indemnified Person should be Indemnifiedindemnified under this Agreement or under applicable law, shall be as a defence defense to IndemniteeIndemnified Person’s claim Claim or create a presumption that Indemnitee Indemnified Person has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether Indemnitee the Indemnified Person is entitled to be Indemnifiedindemnified and/or to receive Expense Advances under this Agreement and under applicable law, the burden of proof shall be on the Company, by clear and convincing evidence, Martek to establish that Indemnitee Indemnified Person is not so entitled. It Notwithstanding the absence of any presumption created by a Reviewing Party’s determination, nothing in this Section 4(c) shall be a defense otherwise limit the admissibility into evidence of documents or testimony related to the Reviewing Party’s work, including without limitation any legal proceeding report issued by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (the Reviewing Party, documents or other than a Claim brought materials relied upon by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but Reviewing Party or testimony from the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defenseReviewing Party.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim Proceeding by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by this Agreement or applicable law. In addition, neither the failure of any Reviewing Party to have made a determination as to whether an Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that an Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by such Indemnitee to secure a judicial determination that such Indemnitee should be Indemnifiedindemnified under this Agreement or applicable law, shall be a defence defense to such Indemnitee’s claim or create a presumption that such Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether the Indemnitee is entitled to be Indemnifiedindemnification or Expense advances hereunder, the burden of proof shall be on the CompanyCompany to establish that the Indemnitee is not so entitled, by clear and convincing evidence. For purposes of any determination of good faith, to establish that Indemnitee is not so entitled. It shall be a defense deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company or relevant Subsidiary, including financial statements, or on information supplied to Indemnitee by the officers of the Company or relevant Subsidiary in the course of their duties, or on the advice of legal counsel for the Company or relevant Subsidiary, by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company or relevant Subsidiary. The knowledge and/or actions, or failure to act, of any legal proceeding by other director, officer, agent or employee of the Company or any of its Subsidiaries shall not be imputed to Indemnitee for purposes of determining the right to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances indemnification under Clause 3 this Agreement. The provisions of this DeedSection 3(b) that shall not be deemed to be exclusive or to limit in any way the indemnification sought by other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defensethis Agreement.

No Presumptions; Burden of Proof. For purposes of this Deed, to the fullest extent permitted by applicable lawAgreement, the termination of any Claim Proceeding by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by this Agreement or applicable law. In addition, neither the failure of any Reviewing Party to have made a determination as to whether an Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that an Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by such Indemnitee to secure a judicial determination that such Indemnitee should be Indemnifiedindemnified under this Agreement or applicable law, shall be a defence defense to such Indemnitee’s claim or create a presumption that such Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any Reviewing Party or otherwise as to whether the Indemnitee is entitled to be Indemnifiedindemnification or Expense advances hereunder, the burden of proof shall be on the Company, by clear and convincing evidence, Company to establish that the Indemnitee is not so entitled. It The knowledge and/or actions, or failure to act, of any other director, officer, agent or employee of the Company or any of its Subsidiaries shall not be a defense imputed to any legal proceeding by Indemnitee for purposes of determining the right to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances indemnification under Clause 3 this Agreement. The provisions of this DeedSection 4(b) that shall not be deemed to be exclusive or to limit in any way the indemnification sought by other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in such legal proceeding is not available under applicable law, but the burden of proof shall be on the Company, by clear and convincing evidence, to establish such defensethis Agreement.

No Presumptions; Burden of Proof. For purposes In any action brought under Section 4(a) hereof, it shall be a defense to a claim for indemnification pursuant to Sections 2(a) or 2(b) hereof (other than an action brought to enforce a claim for Expenses incurred in defending any Proceeding in advance of this Deedits final disposition where the Undertaking, if any is required, has been tendered to the fullest extent permitted by applicable law, Company) that the termination of any Claim by judgement, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall Indemnitee has not create a presumption that Indemnitee did not meet any particular standard met the standards of conduct which make it permissible under the GCL for the Company to indemnify the Indemnitee for the amount claimed, but the burden or have any particular belief or that a court has determined that proving such defense shall be on the right to be Indemnified is not permittedCompany. In addition, neither the The failure of any Reviewing Party the Company (including the Board, independent legal counsel or the Stockholders) to have made a determination as prior to whether commencement of such action that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met any particular the applicable standard of conduct or had any particular belief, nor an actual determination by any Reviewing Party that Indemnitee has set forth in the GCL shall not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified, shall be a defence defense to such Indemnitee’s 's claim or create a presumption that the Indemnitee has not met any particular the applicable standard of conduct or did conduct. In the event that a determination shall have been made pursuant to Section 2(d) of this Agreement that the Indemnitee is not have entitled to indemnification, any particular beliefjudicial proceeding commenced pursuant to this Section 5 shall be conducted in all respects as a de novo trial, on the merits, and the Indemnitee shall not be prejudiced by reason of that adverse determination. In connection with any determination by any Reviewing Party the Company (including the Board, independent legal counsel or the Stockholders) or otherwise as to whether the Indemnitee is entitled to be Indemnifiedindemnification or Expense advances hereunder, the burden of proof shall be on the CompanyCompany to establish that the Indemnitee is not so entitled, by clear and convincing evidence. For purposes of any determination of good faith, to establish that the Indemnitee is not so entitled. It shall be a defense deemed to any have acted in good faith if the Indemnitee's action is based on the records or books of account of the Company, including financial statements, or on information supplied to the Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal proceeding by Indemnitee to secure a judicial determination that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 of this Deed) that the indemnification sought by Indemnitee in such legal proceeding is not available under applicable law, but the burden of proof shall be on counsel for the Company, by clear and convincing evidencean independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company. The knowledge and/or actions, or failure to establish such defenseact, of any other director, officer, agent or employee of the Company shall not be imputed to the Indemnitee for purposes of determining the right to indemnification under this Agreement. The provisions of this Section 5(b) shall not be deemed to be exclusive or to limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

No Presumptions; Burden of Proof. For purposes of this DeedAgreement, to the fullest extent permitted by applicable law, the termination of any Claim by judgementjudgment, order, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere, or its equivalent, shall not create a presumption that Indemnitee did not meet any particular standard of conduct or have any particular belief or that a court has determined that the right to be Indemnified indemnification is not permittedpermitted by applicable law. In addition, neither the failure of any the Reviewing Party to have made a determination as to whether Indemnitee has met any particular standard of conduct or had any particular belief, nor an actual determination by any the Reviewing Party that Indemnitee has not met such standard of conduct or did not have such belief, prior to the commencement of legal proceedings by Indemnitee to secure a judicial determination that Indemnitee should be Indemnifiedindemnified under applicable law, shall be a defence defense to Indemnitee’s claim or create a presumption that Indemnitee has not met any particular standard of conduct or did not have any particular belief. In connection with any determination by any the Reviewing Party or otherwise as to whether Indemnitee is entitled to be Indemnifiedindemnified hereunder, the burden of proof shall be on the Company, by clear and convincing evidence, Company to establish that Indemnitee is not so entitled. It In addition, if any action is instituted by Indemnitee under this Agreement or under any liability insurance policies maintained by the Company to enforce or interpret any of the terms hereof or thereof, the Company shall be a defense to any legal proceeding by Indemnitee to secure a judicial determination precluded from asserting that Indemnitee should be Indemnified (other than a Claim brought by Indemnitee to secure Expense Advances under Clause 3 the procedures and presumptions of this Deed) Agreement are not valid, binding and enforceable and shall stipulate in any such court that the indemnification sought Company is bound by Indemnitee in such legal proceeding is not available under applicable law, but the burden all provisions of proof shall be on the Company, by clear and convincing evidence, to establish such defensethis Agreement.