Common use of Presumption of Entitlement and Effect of Certain Proceedings Clause in Contracts

Presumption of Entitlement and Effect of Certain Proceedings. (i) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. In the event that any legal proceedings are instituted by Indemnitee under this Agreement to secure a determination that Indemnitee should be indemnified under this Agreement, it is the parties’ intention that the question of Indemnitee’s right to indemnification shall be for the courts to decide, and neither the failure of the Company (including its Board of Directors, or any committee or subgroup of the Board of Directors, the Independent Counsel, or the Company’s stockholders) to have made a determination pursuant to Section 3(b) above that indemnification of Indemnitee is proper under the circumstances because Indemnitee has met the applicable standard of conduct required by applicable law, nor an actual determination pursuant to Section 3(b) above that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has or has not met the applicable standard of conduct.