LeapFrog 2015 Annual Report Download - page 196

such determination is made demonstrate clearly and convincingly that such person acted in bad faith or in a
manner that such person did not believe to be in, or believed was opposed to, the best interests of the
corporation.
(d) Enforcement. Without the necessity of entering into an express contract, all rights to
indemnification and advances to directors under this Bylaw shall be deemed to be contractual rights and be
effective to the same extent and as if provided for in a contract between the corporation and the director.
Any right to indemnification or advances granted by this Section 45 to a director shall be enforceable by or on
behalf of the person holding such right in any court of competent jurisdiction if (i) the claim for
indemnification or advances is denied, in whole or in part, or (ii) no disposition of such claim is made within
ninety (90) days of request therefor. The claimant in such enforcement action, if successful in whole or in
part, shall be entitled to be paid also the expense of prosecuting the claim. In connection with any claim for
indemnification, the corporation shall be entitled to raise as a defense to any such action that the claimant has
not met the standards of conduct that make it permissible under the DGCL or any other applicable law for the
corporation to indemnify the claimant for the amount claimed. Neither the failure of the corporation (including
its Board of Directors, independent legal counsel or its stockholders) to have made a determination prior to
the commencement of such action that indemnification of the claimant is proper under the circumstances
because he has met the applicable standard of conduct set forth in the DGCL or any other applicable law, nor
an actual determination by the corporation (including its Board of Directors, independent legal counsel or its
stockholders) that the claimant has not met such applicable standard of conduct, shall be a defense to the
action or create a presumption that claimant has not met the applicable standard of conduct. In any suit
brought by a director to enforce a right to indemnification or to an advancement of expenses hereunder, the
burden of proving that the director is not entitled to be indemnified, or to such advancement of expenses,
under this Section 45 or otherwise shall be on the corporation.
(e) Non-Exclusivity of Rights. The rights conferred on any person by this Bylaw shall not be exclusive
of any other right which such person may have or hereafter acquire under any applicable statute, provision of
the Certificate of Incorporation or Bylaws, agreement, vote of stockholders or disinterested directors or
otherwise, both as to action in his official capacity and as to action in another capacity while holding office.
To the extent that any provision of the Certificate of Incorporation, agreement, or vote of the stockholders
or disinterested directors is inconsistent with these Bylaws, the provision, agreement, or vote shall take
precedence. The corporation is specifically authorized to enter into individual contracts with any or all of its
directors, officers, employees or agents respecting indemnification and advances, to the fullest extent not
prohibited by the DGCL, or by any other applicable law.
(f) Survival of Rights. The rights conferred on any person by this Bylaw shall continue as to a person
who has ceased to be a director, officer, employee or other agent and shall inure to the benefit of the heirs,
executors and administrators of such a person.
(g) Insurance. To the fullest extent permitted by the DGCL or any other applicable law, the
corporation, upon approval by the Board of Directors, may purchase insurance on behalf of any person
required or permitted to be indemnified pursuant to this Section 45.
(h) Amendments. Any amendment, repeal or modification of this Section 45 shall only be prospective
and shall not affect the rights under this Bylaw in effect at the time of the alleged occurrence of any action or
omission to act that is the cause of any proceeding against any agent of the corporation.
(i) Saving Clause. If this Bylaw or any portion hereof shall be invalidated on any ground by any court
of competent jurisdiction, then the corporation shall nevertheless indemnify each director, officer, employee or
other agent to the full extent permitted by any applicable portion of this Section 45 that shall not have been
invalidated, or by any other applicable law. If this Section 45 shall be invalid due to the application of the
indemnification provisions of another jurisdiction, then the corporation shall indemnify each director to the
full extent not prohibited under any other applicable law.
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