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

Presumptions; Burden and Standard of Proof. In connection with any review of Indemnitee’s entitlement to indemnification by any person, including a court: (i) it shall be a presumption that Indemnitee is entitled to be indemnified and that indemnification of Indemnitee is proper in the circumstances; (ii) the burden of proof shall be on Domtar to overcome such presumptions, and each such presumption shall only be overcome if Domtar establishes that there is no reasonable basis to support it; (iii) the termination of any Proceeding by judgment, order, finding, settlement (whether with or without court approval) or conviction, or upon a plea of nolo contendere or its equivalent, shall not create a presumption that Indemnitee is not entitled to be indemnified or that indemnification is not proper or that a court has made any such finding; and (iv) and any Proceeding commenced by Indemnitee pursuant to Section 5(d) shall be de novo with respect to all determinations of fact and law.

Presumptions; Burden and Standard of Proof. In connection with any Determination, or any review of Indemnitee’s entitlement to indemnification any Determination, by any person, including a court: : (i) it It shall be a presumption that Indemnitee a Determination is entitled to be indemnified and that indemnification of Indemnitee is proper in the circumstances; not required. (ii) the The burden of proof shall be on Domtar the Indemnifying Parties to overcome such presumptionsthe presumption set forth in the preceding clause (i), and each such presumption shall only be overcome if Domtar establishes the Indemnifying Parties establish that there is no reasonable basis to support it; . (iii) the The termination of any Proceeding by judgment, order, finding, settlement (whether with or without court approval) ), or conviction, or upon a plea of nolo contendere contendere, or its equivalent, shall not create a presumption that Indemnitee is not entitled to be indemnified or that indemnification is not proper or that an Indemnitee did not meet the applicable standard of conduct or that a court has made any such finding; and determined that indemnification is not permitted by this Agreement or otherwise. (iv) Neither the failure of any person or persons to have made a Determination nor an Adverse Determination by any person or persons shall be a defense to an Indemnitee’s claim or create a presumption that an Indemnitee did not meet the applicable standard of conduct, and any Proceeding commenced by an Indemnitee pursuant to Section 5(d) 4(f)above shall be de novo with respect to all determinations of fact and law.