Common use of Presumptions in Enforcement Action Clause in Contracts

Presumptions in Enforcement Action. In any Enforcement Action the following presumptions (and limitation on presumptions) shall apply: (a) The Company shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it to induce Indemnitee to accept the position of, or to continue as a director of the Company; (b) Indemnitee shall be presumed to be entitled to indemnification upon submission of a written claim (and, in an action brought to enforce a claim for an Expense Advance, where the required undertaking has been tendered to the Company), and the Company shall have the burden of proof to overcome the presumption that Indemnitee is so entitled; (c) Neither (i) the failure of the Company (including its Board of Directors, independent or special legal counsel or the Company’s shareholders) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the Company, its Board of Directors, independent or special legal counsel or the shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement Action or create a presumption that Indemnitee is not entitled to indemnification; and (d) Indemnitee shall be presumed 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 an Indemnitee by the officers of the Company in the course of their duties, or on the advice of legal counsel for the Company or on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the Company, unless affiliated with Indemnitee, shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 3.2(d) 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.

Presumptions in Enforcement Action. In any Enforcement Action Action, the following presumptions (and limitation limitations on presumptions) shall apply: (a) The Company shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it hereunder in order to induce Indemnitee to accept the position of, of or to continue as a director of the Company;. (b) Indemnitee shall be presumed to be entitled to indemnification upon submission of a written claim (and, in an action brought to enforce a claim for an Expense Advance, where the any required undertaking has been tendered to the Company), ) and the Company shall have the burden of proof to overcome the presumption that Indemnitee is so entitled;. (c) Neither (i) the failure of the Company (including its the Company’s Board of Directors, an independent or committee of the Board of Directors, special legal counsel to the Company or the Company’s shareholders) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the Company, its the Company’s Board of Directors, an independent or committee of the Board of Directors, special legal counsel to the Company or the Company’s shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement Action or create a presumption that Indemnitee is not entitled to indemnification; andindemnification hereunder. (d) Indemnitee shall be presumed to have acted in good faith if Indemnitee’s action is based on (i) the records or books of account of the Company, including financial statements, or on (ii) information supplied to an Indemnitee by the officers of the Company in the course of their duties, or (iii) on the advice of legal the counsel for the Company or (iv) on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company. In addition, the knowledge and/or actions, or failure to act, of any director, officer, employee, or agent or employee of the Company, unless affiliated with Indemnitee, Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 3.2(d) 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. (e) If Indemnitee is or was serving as a director, officer, employee, trustee or agent of a corporation of which a majority of the shares entitled to vote in the election of its directors is held by the Company or in any executive or management capacity in a partnership, joint venture, trust or other enterprise of which the Company or a wholly owned subsidiary of the Company is a general partner or has a majority ownership, then such corporation, partnership, joint venture, trust or enterprise shall conclusively be deemed a Related Company and Indemnitee shall conclusively be deemed to be serving such Related Company at the request of the Company.

Presumptions in Enforcement Action. In any Enforcement Action Action, the following presumptions (and limitation on presumptions) shall apply: (a) The Company Bank shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it to induce Indemnitee to accept the position of, or to continue as a director or officer of the CompanyBank; (b) Indemnitee shall be presumed to be entitled to indemnification upon submission of a written claim (and, in an action brought to enforce a claim for an Expense Advance, where the required undertaking has been tendered to the CompanyBank), and the Company Bank shall have the burden of proof to overcome the presumption that Indemnitee is so entitled; (c) Neither (i) the failure of the Company Bank (including its Board of Directors, Directors or independent or special legal counsel or the Company’s shareholderscounsel) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the CompanyBank, its Board of Directors, Directors or independent or special legal counsel or the shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement Action or create a presumption that Indemnitee is not entitled to indemnification; and (d) Indemnitee shall be presumed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the CompanyBank, including financial statements, or on information supplied to an Indemnitee by the officers of the Company Bank in the course of their duties, or on the advice of legal counsel for the Company Bank or on information or records given or reports made to the Company Bank by an independent certified public accountant or by an appraiser appraiser, actuary or other expert selected with reasonable care by the CompanyBank. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the CompanyBank, unless affiliated with Indemnitee, shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 3.2(d) 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 CompanyBank. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion, by clear and convincing evidence.

Presumptions in Enforcement Action. In any Enforcement Action Action, the following presumptions (and limitation limitations on presumptions) shall apply: (a) The Company shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it hereunder in order to induce Indemnitee to accept the position of, of or to continue as a director an officer of the Company;. (b) Indemnitee shall be presumed to be entitled to indemnification upon submission of a written claim (and, in an action brought to enforce a claim for an Expense Advance, where the any required undertaking has been tendered to the Company), ) and the Company shall have the burden of proof to overcome the presumption that Indemnitee is so entitled;. (c) Neither (i) the failure of the Company (including its the Company’s Board of Directors, an independent or committee of the Board of Directors, special legal counsel to the Company or the Company’s shareholders) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the Company, its the Company’s Board of Directors, an independent or committee of the Board of Directors, special legal counsel to the Company or the Company’s shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement Action or create a presumption that Indemnitee is not entitled to indemnification; andindemnification hereunder. (d) Indemnitee shall be presumed to have acted in good faith if Indemnitee’s action is based on (i) the records or books of account of the Company, including financial statements, or on (ii) information supplied to an Indemnitee by the officers of the Company in the course of their duties, or (iii) on the advice of legal the counsel for the Company or (iv) on information or records given or reports made to the Company by an independent certified public accountant or by an appraiser or other expert selected with reasonable care by the Company. In addition, the knowledge and/or actions, or failure to act, of any director, officer, employee, or agent or employee of the Company, unless affiliated with Indemnitee, Company shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 3.2(d) 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. (e) If Indemnitee is or was serving as a director, officer, employee, trustee or agent of a corporation of which a majority of the shares entitled to vote in the election of its directors is held by the Company or in any executive or management capacity in a partnership, joint venture, trust or other enterprise of which the Company or a wholly owned subsidiary of the Company is a general partner or has a majority ownership, then such corporation, partnership, joint venture, trust or enterprise shall conclusively be deemed a Related Company and Indemnitee shall conclusively be deemed to be serving such Related Company at the request of the Company.

Presumptions in Enforcement Action. In any Enforcement Action Action, the following presumptions (and limitation on presumptions) shall apply: (a) The Company Bank shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it to induce Indemnitee to accept the position of, or to continue as a director or officer of the CompanyBank; (b) Indemnitee shall be presumed to be entitled to indemnification upon submission of a written claim (and, in an action brought to enforce a claim for an Expense Advance, where the required undertaking has been tendered to the CompanyBank), and the Company Bank shall have the burden of proof to overcome the presumption that Indemnitee is so entitled; (c) Neither (i) the failure of the Company Bank (including its Board of Directors, Directors or independent or special legal counsel or the Company’s shareholderscounsel) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the CompanyBank, its Board of Directors, Directors or independent or special legal counsel or the shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement Action or create a presumption that Indemnitee is not entitled to indemnification; and (d) Indemnitee shall be presumed to have acted in good faith if Indemnitee’s 's action is based on the records or books of account of the CompanyBank, including financial statements, or on information supplied to an Indemnitee by the officers of the Company Bank in the course of their duties, or on the advice of legal counsel for the Company Bank or on information or records given or reports made to the Company Bank by an independent certified public accountant or by an appraiser appraiser, actuary or other expert selected with reasonable care by the CompanyBank. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the CompanyBank, unless affiliated with Indemnitee, shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 3.2(d) 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 CompanyBank. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion, by clear and convincing evidence.

Presumptions in Enforcement Action. In any Enforcement Action Action, the following presumptions (and limitation on presumptions) shall apply: (a) The Company Bank shall conclusively be presumed to have entered into this Agreement and assumed the obligations imposed on it to induce Indemnitee to accept the position of, or to continue as a director or officer of the CompanyBank; (b) Indemnitee shall be presumed to be entitled to indemnification upon submission of a written claim (and, in an action brought to enforce a claim for an Expense Advance, where the required undertaking has been tendered to the CompanyBank), and the Company Bank shall have the burden of proof to overcome the presumption that Indemnitee is so entitled; (c) Neither (i) the failure of the Company Bank (including its Board of Directors, Directors or independent or special legal counsel or the Company’s shareholderscounsel) to have made a determination prior to the commencement of the Enforcement Action that indemnification of Indemnitee is proper in the circumstances nor (ii) an actual determination by the CompanyBank, its Board of Directors, Directors or independent or special legal counsel or the shareholders that Indemnitee is not entitled to indemnification shall be a defense to the Enforcement Action or create a presumption that Indemnitee is not entitled to indemnification; and (d) Indemnitee shall be presumed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the CompanyBank, including financial statements, or on information supplied to an Indemnitee by the officers of the Company Bank in the course of their duties, or on the advice of legal counsel for the Company Bank or on information or records given or reports made to the Company Bank by an independent certified public accountant or by an appraiser appraiser, actuary or other expert selected with reasonable care by the CompanyBank. In addition, the knowledge and/or actions, or failure to act, of any director, officer, agent or employee of the CompanyBank, unless affiliated with Indemnitee, shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 3.2(d) are satisfied, it shall in any event be presumed in a Proceeding 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 CompanyBank. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion, by clear and convincing evidence.