Common use of Presumptions; Burden and Standard of Proof Clause in Contracts

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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; (iii) For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the CompanyCompany in the course of their duties, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any personPerson, including a courtCourt: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Enterprise or any other person or entity Person challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination Determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Enterprise, andor, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful, or that Indemnitee did not act in accordance with any other applicable standard of conduct imposed by contract, applicable law or otherwise; (iii) Indemnitee will be deemed to have acted in good faith if it is determined by a majority of the board of directors or other governing body of the applicable Enterprise or by Independent Counsel, as applicable, that Indemnitee’s action is based on the records or books of account of the Companyapplicable Enterprise, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors or other governing body of the Companyapplicable Enterprise, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Enterprise or on information or records given in reports made to the Company applicable Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Enterprise; and (iv) the knowledge and/or and actions, or failure to act, of any director, officer, manager, representative, agent or employee of the Company any Enterprise or other relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any personPerson, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Enterprise or any other person or entity Person challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity Person of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Enterprise, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawfulunlawful or that Indemnitee did not act in accordance with any other applicable standard of conduct imposed by contract, applicable law or otherwise; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Enterprise, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board Board of directors Directors or other governing body of the Companyapplicable Enterprise, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Enterprise or on information or records given in reports made to the Company applicable Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Enterprise; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, manager, representative, agent or employee of the Company any Enterprise or other relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company CCO or any other Outdoor Entity or other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 CompanyCCO or other applicable Outdoor Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyany Outdoor Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Outdoor Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Outdoor Entity or for Indemnitee or on information or records given in reports made available to the Company applicable Outdoor Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Outdoor Entity or Indemnitee; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company CCO or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(gclause (g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company IMS Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable IMS Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable IMS Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable IMS Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable IMS Entity or on information or records given in reports made to the Company applicable IMS Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable IMS Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company IMS Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawLaw, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and (A) the Company Entities or any other person or entity challenging such right will have the burden of proof and the burden of persuasion by clear and convincing evidence to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption, and (B) neither the failure of the Company (including by its directors or Independent Counsel) to have made a Determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual Determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct; (ii) 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, and therefore in 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 or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding, and anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence; (iii) the termination of any action, suit or proceeding Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its 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 an unfavorable 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, against Indemnitee; and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iiiiv) Indemnitee will be deemed to have acted in good faith reasonably if Indemnitee’s action is based on the records or books of account of the Companyapplicable Company Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, employees or committees of the board of directors (or equivalent governing body) of the Companyapplicable Company Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the applicable Company Entity or on information or records given in reports made to the applicable Company Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected with reasonable care by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the applicable Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunderEntity. The provisions of this Section 9(g10(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, whether or not the foregoing provisions of this Section 10(g) are satisfied, it shall in no event create any unfavorable presumption with respect to Indemnitee’s actions. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Mattress Firm Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Mattress Firm Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Mattress Firm Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Mattress Firm Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Mattress Firm Entity or on information or records given in reports made to the Company applicable Mattress Firm Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Mattress Firm Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Mattress Firm Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company ATD Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable ATD Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable ATD Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable ATD Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable ATD Entity or on information or records given in reports made to the Company applicable ATD Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable ATD Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company ATD Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company Rosehill Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Rosehill Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Rosehill Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Rosehill Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Rosehill Entity or on information or records given in reports made to the Company applicable Rosehill Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Rosehill Entity; provided, however, that Indemnitee will not be deemed to have acted in good faith if such record or book of account of the applicable Rosehill Entity that was the basis for Indemnitee’s action was created by or at the direction of Indemnity acting in bad faith or with gross negligence; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Rosehill Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder; provided, however, that the foregoing shall not be true if Indemnitee acts or fails to act in bad faith or with gross negligence. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any personPerson, including a courtcourt of competent jurisdiction: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Enterprise or any other person or entity Person challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination Determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Enterprise, andor, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful, or that Indemnitee did not act in accordance with any other applicable standard of conduct imposed by contract, applicable law or otherwise; (iii) Indemnitee will be deemed to have acted in good faith if it is determined by a majority of the board of directors or other governing body of the applicable Enterprise or by Independent Counsel, as applicable, that Indemnitee’s action is based on the records or books of account of the Companyapplicable Enterprise, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors or other governing body of the Companyapplicable Enterprise, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Enterprise or on information or records given in reports made to the Company applicable Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Enterprise; and (iv) the knowledge and/or and actions, or failure to act, of any director, officer, manager, representative, agent or employee of the Company any Enterprise or other relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawunder Applicable Law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company Osmotica Entities or any other person or entity challenging such right will have the burden of proof proof, by clear and convincing evidence, to overcome that presumption in connection with the making by any person, persons or entity of any determination Determination contrary to that presumption; (ii) the termination of any action, suit or proceeding 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 Companyapplicable Osmotica Entity, and, with respect to any criminal action or proceedingProceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Osmotica Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, employees or committees of the board of directors of the Companyapplicable Osmotica Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Osmotica Entity or on information or records given in reports made to the Company applicable Osmotica Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Osmotica Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Osmotica Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of legal counsel or other consultants and/or advisors (including tax advisors, financial advisors advisors, and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s 's entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or proceeding by judgment, order, order or 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 meet the best interests standard of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe conduct that Indemnitee’s conduct was unlawfulwould permit indemnification; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s 's action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s 's rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the fullest extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any personPerson, including a courtCourt: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Entity or any other person or entity Person challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity Person of any determination contrary to that presumption; (ii) the termination of any action, suit suit, or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act engaged in good faith and Disabling Conduct or acted in a manner which Indemnitee did not reasonably believed believe to be in or not opposed to the best interests of the Companyapplicable Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that IndemniteeXxxxxxxxxx’s conduct was unlawfulunlawful or that Indemnitee did not act in accordance with any other applicable standard of conduct imposed by contract, applicable law or otherwise; (iii) Indemnitee will be deemed to have acted not engaged in good faith Disabling Conduct if Indemnitee’s action or omission is based on the records or books of account of the Companyapplicable Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors or other governing body of the Companyapplicable Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Entity or on information or records given in reports made to the Company applicable Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Entity; and and (iv) the knowledge and/or actions, or failure to act, of any director, officer, manager, representative, agent or employee of the Company any Entity or other relevant enterprises Enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. Whether or not the foregoing provisions of this Section 9(g) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawLaw, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and (A) the Company Entities or any other person or entity challenging such right will have the burden of proof and the burden of persuasion by clear and convincing evidence to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption, and (B) neither the failure of the Companies (including by its directors or Independent Counsel) to have made a Determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual Determination by the Companies (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct; (ii) 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, and therefore in 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 or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding, and anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence; (iii) the termination of any action, suit or proceeding Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its 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 an unfavorable 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, against Indemnitee; and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iiiiv) Indemnitee will be deemed to have acted in good faith reasonably if Indemnitee’s action is based on the records or books of account of the Companyapplicable Company Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors (or equivalent governing body) of the Companyapplicable Company Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the applicable Company Entity or on information or records given in reports made to the applicable Company Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected with reasonable care by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the applicable Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunderEntity. The provisions of this Section 9(g10(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, whether or not the foregoing provisions of this Section 10(g) are satisfied, it shall in no event create any unfavorable presumption with respect to Indemnitee’s actions. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement Deed (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this AgreementDeed.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Party City Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Party City Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Party City Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Party City Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Party City Entity or on information or records given in reports made to the Company applicable Party City Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Party City Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Party City Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to IndemniteeXxxxxxxxxx’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Party City Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Party City Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if IndemniteeXxxxxxxxxx’s action is based on the records or books of account of the Companyapplicable Party City Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Party City Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Party City Entity or on information or records given in reports made to the Company applicable Party City Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Party City Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Party City Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawXxx, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and (A) the Company Entities or any other person or entity challenging such right will have the burden of proof and the burden of persuasion by clear and convincing evidence to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption, and (B) neither the failure of the Company (including by its directors or Independent Counsel) to have made a Determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual Determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall create a presumption that Indemnitee has not met the applicable standard of conduct; (ii) 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, and therefore in 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 or without payment of money or other consideration) it shall be presumed that Indemnitee has been successful on the merits or otherwise in such action, suit or proceeding, and anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence; (iii) the termination of any action, suit or proceeding Proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its 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 an unfavorable 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, against Indemnitee; and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iiiiv) Indemnitee will be deemed to have acted in good faith reasonably if Indemnitee’s action is based on the records or books of account of the Companyapplicable Company Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, employees or committees of the board of directors (or equivalent governing body) of the Companyapplicable Company Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the applicable Company Entity or on information or records given in reports made to the applicable Company Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected with reasonable care by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the applicable Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunderEntity. The provisions of this Section 9(g10(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement. In addition, whether or not the foregoing provisions of this Section 10(g) are satisfied, it shall in no event create any unfavorable presumption with respect to Indemnitee’s actions. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will shall be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company TMM Entities or any other person or entity challenging such right will shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable TMM Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will shall be deemed presumed to have acted in good faith in furtherance of Indemnitee’s Corporate Status if Indemnitee’s action is acts or omissions in Indemnitee’s capacity as a director, officer, employee, fiduciary, trustee, or agent of any of the TMM Entities are based on the reliance in good faith on the records or books of account of the Companyapplicable TMM Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable TMM Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable TMM Entity or on information or records given in reports made to the Company applicable TMM Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable TMM Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company TMM Entities or relevant enterprises will shall not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or proceeding by judgment, order, order or 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 meet the best interests standard of the Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe conduct that Indemnitee’s conduct was unlawfulwould permit indemnification; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) : it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) ; the termination of any action, suit or 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; (iii) ; Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) and the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company Gymboree Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Gymboree Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Gymboree Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Gymboree Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Gymboree Entity to the extent Indemnitee reasonably believes such matters are within the general scope of services (i.e., legal, tax, financial advice, etc.) provided by or competence of such person or on information or records given in reports made to the Company applicable Gymboree Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Gymboree Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Gymboree Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawunder Applicable Law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company PQ Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable PQ Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable PQ Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, employees or committees of the board of directors of the Companyapplicable PQ Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable PQ Entity or on information or records given in reports made to the Company applicable PQ Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable PQ Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company PQ Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board Board of directors of the CompanyDirectors, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Michaels Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Michaels Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Michaels Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Michaels Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Michaels Entity or on information or records given in reports made to the Company applicable Michaels Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Michaels Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Michaels Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company SkillSoft Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable SkillSoft Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable SkillSoft Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable SkillSoft Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable SkillSoft Entity or on information or records given in reports made to the Company applicable SkillSoft Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable SkillSoft Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company SkillSoft Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawunder Applicable Law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company Eloxx Companies or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 applicable Eloxx Company, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the applicable Eloxx Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, employees or committees of the board of directors of the applicable Eloxx Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the applicable Eloxx Company or on information or records given in reports made to the applicable Eloxx Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the applicable Eloxx Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Eloxx Companies or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company WLR Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable WLR Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; ; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable WLR Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable WLR Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable WLR Entity or on information or records given in reports made to the Company applicable WLR Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable WLR Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, that in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it It will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Indemnitors, or any other person or entity challenging such right right, will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the The termination of any action, suit or 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 CompanyNexeo Companies, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the CompanyNexeo Companies, including financial statements, or on information supplied to Indemnitee by the officers, employeesBoard of Directors, or committees any committee of the board Board of directors Directors or any officers or employees of the CompanyNexeo Companies, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company Nexeo Companies or on information or records given in reports made to the Company Nexeo Companies by an independent certified public accountant or by an appraiser or other expert or advisor selected by the CompanyNexeo Companies; and (iv) the The knowledge and/or actions, or failure to act, of any director, officer, manager, member of the board of managers, agent or employee of any of the Company or relevant enterprises Nexeo Companies will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any personPerson, including a courtCourt: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination)Agreement, and the Company Enterprise or any other person or entity Person challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination Determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Enterprise, andor, with respect to any criminal action or proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful, or that Indemnitee did not act in accordance with any other applicable standard of conduct imposed by contract, applicable law or otherwise; (iii) Indemnitee will be deemed to have acted in good faith if it is determined by a majority of the Board of Directors or other governing body of the applicable Enterprise or by Independent Counsel, as applicable, that Indemnitee’s action is based on the records or books of account of the Companyapplicable Enterprise, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors or other governing body of the Companyapplicable Enterprise, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Enterprise or on information or records given in reports made to the Company applicable Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Enterprise; and (iv) the knowledge and/or and actions, or failure to act, of any director, officer, manager, representative, agent or employee of the Company any Enterprise or other relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company Quintiles IMS Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Quintiles IMS Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Quintiles IMS Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board of directors of the Companyapplicable Quintiles IMS Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Quintiles IMS Entity or on information or records given in reports made to the Company applicable Quintiles IMS Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Quintiles IMS Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Quintiles IMS Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Company, including financial statements, or on information supplied to Indemnitee by the officers, employees, or committees of the board Board of directors Directors of the Company, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company or on information or records given in reports made to the Company by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Company; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) 10 shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.

Presumptions; Burden and Standard of Proof. The parties intend and agree that, to the extent permitted by lawunder Applicable Law, in connection with any Determination with respect to Indemnitee’s entitlement to indemnification hereunder by any person, including a court: (i) it will be presumed that Indemnitee is entitled to indemnification under this Agreement (notwithstanding any Adverse Determination), and the Company Ecovyst Entities or any other person or entity challenging such right will have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption; (ii) the termination of any action, suit or 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 Companyapplicable Ecovyst Entity, and, with respect to any criminal action or proceeding, had reasonable cause to believe that Indemnitee’s conduct was unlawful; (iii) Indemnitee will be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Companyapplicable Ecovyst Entity, including financial statements, or on information supplied to Indemnitee by the officers, employees, employees or committees of the board of directors of the Companyapplicable Ecovyst Entity, or on the advice of legal counsel or other advisors (including financial advisors and accountants) for the Company applicable Ecovyst Entity or on information or records given in reports made to the Company applicable Ecovyst Entity by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Companyapplicable Ecovyst Entity; and (iv) the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of any of the Company Ecovyst Entities or relevant enterprises will not be imputed to Indemnitee in a manner that limits or otherwise adversely affects Indemnitee’s rights hereunder. The provisions of this Section 9(g) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.