Danaher 2008 Annual Report Download - page 323

connection with its acting in such capacity. The Corporation shall pay any and all reasonable and necessary fees and expenses incident to the procedures of
this paragraph, regardless of the manner in which such Independent Counsel was selected or appointed.
(d) The termination of any Proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the Indemnitee did not act in good faith and in a manner that the Indemnitee reasonably believed to be in, or not opposed to, the
best interests of the Corporation, and, with respect to any criminal Proceeding, had reasonable cause to believe that his or her conduct was unlawful.
(e) For purposes of any determination under this Section 9, to the extent permitted by law Indemnitee shall be deemed to have acted in good faith
and in a manner he reasonably believed to be in or not opposed to the best interests of the Corporation, or, with respect to any criminal action or proceeding, to
have had no reasonable cause to believe his conduct was unlawful, if his action is based on the records or books of account of the Enterprise, or on
information supplied to him by the officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise or on information
or records given or reports made to the Enterprise by an independent certified public accountant or by an appraiser or other expert selected with reasonable care
by the Enterprise. The provisions of this Section 9(e) shall not be deemed to be exclusive or to limit in any way the circumstances in which a person may be
deemed to have met the applicable standard of conduct set forth in this Agreement.
(f) The Indemnitee shall cooperate with the person, persons or entity making such determination with respect to the Indemnitee’s entitlement to
indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not
privileged or otherwise protected from disclosure and which is reasonably available to the Indemnitee and reasonably necessary to such determination. Any
Expenses actually and reasonably incurred by the Indemnitee in so cooperating shall be borne by the Corporation (irrespective of the determination as to the
Indemnitee’s entitlement to indemnification) and the Corporation hereby indemnifies the Indemnitee therefrom.
10. Remedies. The right to indemnification or advancement of Expenses as provided by this Agreement shall be enforceable by the Indemnitee in any
court of competent jurisdiction. In connection with any determination as to whether the Indemnitee is entitled to be indemnified under this Agreement, the court
shall presume that the Indemnitee has met the applicable standard of conduct and is entitled to indemnification, and, unless otherwise required by law, the
burden of proof shall be on the Corporation to establish by clear and convincing evidence that the Indemnitee is not so entitled. Neither the failure of the Board
of Directors (or other person or body appointed pursuant to Section 9) to have made a determination that indemnification is proper in the circumstances
because Indemnitee has met the applicable standard of conduct, nor an actual determination pursuant to Section 9 that Indemnitee has not met such applicable
standard of conduct, shall be a defense to an action brought to enforce this Agreement or create a presumption that Indemnitee has not met the applicable
standard of conduct. The Indemnitee’s Expenses actually and reasonably incurred in connection with successfully establishing the Indemnitee’s right to
indemnification, in whole or in part, in any such Proceeding shall also be indemnified by the Corporation.
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Source: DANAHER CORP /DE/, 10-K, February 25, 2009 Powered by Morningstar® Document Research℠
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