Danaher 2008 Annual Report Download - page 322

indemnification or advancement of Expenses. Any such indemnification or advancement of Expenses shall be made promptly, and in any event within (i) in
the case of indemnification under Sections 4, 5, 8 or 9(f), 30 calendar days after receipt by the Corporation of the written request of the Indemnitee, or (ii) in
the case of all other indemnification, 60 calendar days after receipt by the Corporation of the written request of the Indemnitee, subject to the provisions of
Sections 9(b) below.
(b) With respect to requests for indemnification under Section 3, indemnification shall be made unless the Corporation determines that Indemnitee
has not met the applicable standard of conduct set forth in Section 3. Any determination as to whether Indemnitee has met the applicable standard of conduct
set forth in Section 3, and any determination that advanced Expenses must be subsequently repaid to the Corporation, shall be made, in the discretion of the
Board of Directors of the Corporation, (1) by a majority vote of the directors of the Corporation consisting of persons who are not at that time parties to the
Proceeding (“disinterested directors”), whether or not a quorum, (2) by a committee of disinterested directors designated by a majority vote of disinterested
directors, whether or not a quorum, (3) if there are no disinterested directors, or if the disinterested directors so direct, by Independent Counsel in a written
opinion to the Board, or (4) by the stockholders of the Corporation. Any such determination with respect to requests under Section 3 shall be made within the
60-day period referred to in clause (ii) of Section 9(a) (unless extended by mutual agreement by the Corporation and Indemnitee).
(c) Notwithstanding anything to the contrary set forth in this Agreement, if a request for indemnification is made after a Change in Control, any
determination required to be made pursuant to Section 9(b) above as to whether the Indemnitee has met the applicable standard of conduct or is required to
repay advanced Expenses shall be made by Independent Counsel selected as provided in this Section 9(c). The Independent Counsel shall be selected by the
Indemnitee, unless the Indemnitee shall request that such selection be made by the Board of Directors of the Corporation. The party making the determination
shall give written notice to the other party advising it of the identity of the Independent Counsel so selected. The party receiving such notice may, within seven
days after such written notice of selection shall have been given, deliver to the other party a written objection to such selection. Such objection may be asserted
only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2, and the objection
shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent
Counsel. If a written objection is made, the Independent Counsel so selected may not serve as Independent Counsel unless and until a court has determined that
such objection is without merit. If, within 20 days after submission by the Indemnitee of a written request for indemnification, no Independent Counsel shall
have been selected or if selected, shall have been objected to, in accordance with this paragraph either the Corporation or the Indemnitee may petition the Court
of Chancery of the State of Delaware or other court of competent jurisdiction for resolution of any objection which shall have been made by the Corporation or
the Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the court or by such
other person as the court shall designate, and the person with respect to whom an objection is favorably resolved or the person so appointed shall act as
Independent Counsel. The Corporation shall pay the reasonable fees and expenses of Independent Counsel incurred in
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Source: DANAHER CORP /DE/, 10-K, February 25, 2009 Powered by Morningstar® Document Research℠
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