Common use of Continued Service Clause in Contracts

Continued Service. The Indemnitee shall continue to serve at the will of the Company as a Director of the Company so long as he is duly elected in accordance with the Second Amended and Restated Articles of Incorporation of the Company (the "Articles") and the Second Amended and Restated Code of Regulations of the Company (the "Regulations") or until he resigns in writing in accordance with applicable law. Initial Indemnity. The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was a Director of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges, and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection therewith, including any appeal of or from any judgment or decision, unless it is proved by clear and convincing evidence in a court of competent jurisdiction that the Indemnitee's action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company. In addition, with respect to any criminal action or proceeding, indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto. The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was a Director of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, unless it is proved by clear and convincing evidence in a court of competent jurisdiction that the Indemnitee's action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC"). Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of Directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested Directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought. To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith. Expenses actually and reasonably incurred by the Indemnitee in defending any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof. For purposes of this Agreement, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a Director, officer, employee, member, manager, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word "including" is used by way of illustration only and not by way of limitation. No amendment to the Articles or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to this Agreement, except to the extent that such amendment is required by law to be given effect. No amendment to the Articles or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by the Shareholders, except to the extent that such amendment is required by law to be given effect. In the event that the Company shall purport to adopt any amendment to its Articles or Regulations or take any other action the effect of which is to deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any such other law, such amendment shall apply only to acts or failures to act occurring entirely after the Effective Date thereof.

Continued Service. The Indemnitee shall continue to serve serve, at the will of the Company or in accordance with a separate contract to the extent that such a contract is in effect at the time in question, as a Director an officer of the Company so long as he she is duly elected and qualified in accordance with the Second Amended and Restated Articles of Incorporation of the Company (the "Articles") and the Second Amended and Restated Code of Regulations of the Company (the "Regulations") or until he she resigns in writing in accordance with applicable law. Initial Indemnity. The Company shall indemnify the Indemnitee if or when he she is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he she is or was a Director an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges, and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement actually settlement, actually, and reasonably incurred by the Indemnitee in connection therewith, including any appeal of or from any judgment or decision, unless it is proved by clear if the Indemnitee acted in good faith and convincing evidence in a court of competent jurisdiction that the Indemnitee's action manner which she reasonably believed to be in or failure not opposed to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company. In addition, with respect to any criminal action or proceeding, indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his her conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto. The Company shall indemnify the Indemnitee if or when he she is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was a Director an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, unless it is proved by clear if the Indemnitee acted in good faith and convincing evidence in a court of competent jurisdiction that the Indemnitee's action manner she reasonably believed to be in or failure not opposed to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC"). Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he she has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of Directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested Directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought. To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he she shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith. Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof. For purposes of this Agreement, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a Director, officer, employee, member, manager, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word "including" is used by way of illustration only and not by way of limitation. No amendment to the Second Amended and Restated Articles of Incorporation of the Company (the "Articles") or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to this Agreement, except to the extent that such amendment is required by law to be given effect. No amendment to the Articles or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by the Shareholders, except to the extent that such amendment is required by law to be given effect. In the event that the Company shall purport to adopt any amendment to its Articles or Regulations or take any other action the effect of which is to deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any such other law, such amendment shall apply only to acts or failures to act occurring entirely after the Effective Date thereof.

Continued Service. The Indemnitee shall will continue to serve at the will of the Company as a Director director of the Company DTE Energy so long as he the Indemnitee is duly elected and qualified in accordance with the Second Amended and Restated Articles of Incorporation of the Company By-Laws of (the "Articles"a) and the Second Amended and Restated Code of Regulations of the Company (the "Regulations") or until he resigns in writing in accordance with applicable law. Initial Indemnity. The Company DTE Energy shall indemnify the Indemnitee if when the Indemnitee was or when he is a party or is threatened to be made a party to any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, administrative or investigative (and whether formal or informal, other than an action by or in the right of the Company)DTE Energy, by reason of the fact that he the Indemnitee is or was a Director director, officer, employee or agent of the Company DTE Energy, or is or was serving at the request of the Company DTE Energy as a director, trustee, officer, employee, member, manager, employee or agent of another foreign or domestic corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, whether for profit or by reason of any action alleged to have been taken or omitted in any such capacitynot, against any and all costsexpenses, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges, and expenses being herein jointly referred to as "Expenses")attorneys' fees, judgments, finespenalties, fines and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection therewithwith such action, including any appeal of suit or from any judgment or decision, unless it is proved by clear proceeding if the Indemnitee acted in good faith and convincing evidence in a court of competent jurisdiction that manner the Indemnitee's action Indemnitee reasonably believed to be in, or failure not opposed to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company. In additionDTE Energy or its shareholders, and, with respect to any criminal action or proceeding, indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his such conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, conviction or upon a plea of nolo contendere or its equivalent, equivalent shall not, of itself, create a presumption that the Indemnitee did not satisfy act in good faith and in a manner which the foregoing standard of conduct Indemnitee reasonably believed to be in or not opposed to the extent applicable thereto. The Company best interests of DTE Energy or its shareholders and, with respect to any criminal action or proceeding, that the Indemnitee had reasonable cause to believe that such conduct was unlawful. (b) DTE Energy shall indemnify the Indemnitee if when the Indemnitee was or when he is a party or is threatened to be made a party, party to any threatened, pending, pending or completed action, suit, action or proceeding suit by or in the right of the Company DTE Energy to procure a judgment in its favor, favor by reason of the fact that the Indemnitee is or was a Director director, officer, employee, or agent of the Company DTE Energy, or is or was serving or had agreed to serve at the request of the Company DTE Energy as a director, officer, partner, trustee, officer, employee, member, manager, employee or agent of another foreign or domestic corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, trust or other enterprise, whether for profit or not, against any expenses, including attorneys' fees and all Expenses amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection with the defense action or settlement thereof or any appeal of or from any judgment or decisionsuit, unless it is proved by clear if the Indemnitee acted in good faith and convincing evidence in a manner the Indemnitee reasonably believed to be in, or not opposed to the best interests of DTE Energy or its shareholders. Indemnification shall not be made for a claim, issue or matter in which the Indemnitee has been found liable to DTE Energy except to the extent the Court conducting the proceeding or another court of competent jurisdiction shall determine upon application that the Indemnitee's action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any action or suit in which the only liability asserted against the Indemnitee is pursuant fairly and reasonably entitled to indemnification in view of all relevant circumstances whether or not the Indemnitee met the standard of conduct set forth in this paragraph (b) or was so adjudged liable to DTE Energy; provided that if the Indemnitee was adjudged liable, such indemnification is limited to reasonable expenses incurred. (c) To the extent that the Indemnitee has been successful, on the merits or otherwise, in defense of any action, suit or proceeding referred to in Section 1701.95 2(a) or 2(b) hereof, or in defense of any claim, issue or matter in the Ohio Revised Code action, suit or proceeding, the Indemnitee shall be indemnified against actual and reasonable expenses, including attorneys' fees incurred by the (the "ORC"). d) Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company DTE Energy only as authorized in the specific case upon a determination that indemnification in accordance with Section 4 hereof or any applicable provision of the Indemnitee is proper Articles of Incorporation of DTE Energy in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) effect from time to time, By-Laws, other agreement, resolution or 2(b)otherwise. Such authorization determination shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum of the Board of Directors of DTE Energy ("DTE Energy Board") consisting of Directors directors who were not and are not parties to or threatened with to be made parties to such action, suit, suit or proceeding, proceeding or (ii) if such a quorum of disinterested Directors is not available or if obtainable, by a majority vote of such quorum so directsa committee duly designated by DTE Energy Board consisting solely of two or more directors not at the time parties or threatened to be made parties to the suit, in a written opinion action, or proceeding or (iii) by independent legal counsel (designated for such purpose by in the Boardmanner provided below in this subsection (d)) which shall not be an attorney, or in a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, written opinion or (iiiiv) by all independent directors who are not parties to such action, suit or proceeding or (v) by the shareholders of the Company DTE Energy (the "Shareholders"), but shares held by directors, officers, employees or (ivagents who are parties or threatened to be made parties to the action suit or proceeding may not be voted. Independent legal counsel shall be designated by DTE Energy Board or its Committee in the manner prescribed in Section 2(d)(i) or 2(d)(ii); provided, however, that if DTE Energy Board is unable or fails to so designate, such designation shall be made by the court Indemnitee subject to the approval of common pleas DTE Energy (which approval shall not be unreasonably withheld). In the designation of a committee under subsection 2(d)(ii) or other court in which such actionthe selection of independent legal counsel by DTE Energy Board, suitall directors may participate. Independent legal counsel shall not be any person or firm who, or proceeding was brought. To the extent that under (e) If the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred is entitled to in indemnification under Section 2(a) or 2(b)) for a portion of expenses, including reasonable attorneys' fees, judgments, penalties, fines and amounts paid in settlement, but not for the total amount, DTE Energy shall indemnify the Indemnitee for the portion of the expenses, judgments, penalties, fines or amounts paid in defense of any claim, issue, settlement for which the Indemnitee is entitled to be indemnified. (f) DTE Energy shall pay or matter therein, he shall be indemnified against Expenses actually reimburse the reasonable expenses (including attorneys' and reasonably incurred by him in connection therewith. Expenses actually others' fees and reasonably expenses) incurred by the Indemnitee in defending any the Indemnitee's capacity as a director or officer of DTE Energy who is a party or threatened to be made a party to an action, suit, suit or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, suit or proceeding under subject to the procedure set forth provisions of and in the manner prescribed by Section 4(b) hereof. For purposes of this Agreement, references to "other enterprises" . (g) DTE Energy shall include employee benefit plans; references to "fines" shall include not adopt any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a Director, officer, employee, member, manager, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word "including" is used by way of illustration only and not by way of limitation. No amendment to the Articles or By-Laws the Regulations shall effect of which would be to deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to this Agreement, except to the extent that such amendment is required by law to be given effect. No amendment to the Articles or the Regulations shall deny, diminish, diminish or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the RegulationsBy-Laws, the ORC, Business Corporation Act of the State of Michigan (the "BCA") or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by DTE Energy Board or the Shareholders, except to as the extent that such amendment is required by law to be given effectcase may be. In the event that DTE Energy shall adopt (h) Upon application to a court by the Company shall purport to adopt any amendment to its Articles or Regulations or take any other action the effect of which is to deny, diminish, or encumber the Indemnitee's rights to indemnity Indemnitee pursuant to Section 564c of the ArticlesBCA, and a determination of such court that the RegulationsIndemnitee is fairly and reasonably entitled to indemnification, DTE Energy shall pay to the ORC, or any such other law, such amendment shall apply only to acts or failures to act occurring entirely after Indemnitee the Effective Date thereofamount so ordered by the court. 3.

Continued Service. The Indemnitee shall continue to serve serve, at the will of the Company or in accordance with a separate contract, to the extent that such a contract is in effect at the time in question, as a Director and an officer of the Company so long as he is duly elected in accordance with the Second Amended and Restated Articles of Incorporation of the Company (the "Articles") and the Second Amended and Restated Code of Regulations of the Company (the "Regulations") or until he resigns in writing in accordance with applicable law. Initial Indemnity. The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was a Director or an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges, and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement actually and reasonably incurred by the Indemnitee in connection therewith, including any appeal of or from any judgment or decision, unless it is proved by clear and convincing evidence in a court of competent jurisdiction that the Indemnitee's action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company. In addition, with respect to any criminal action or proceeding, indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto. The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was a Director or an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, unless it is proved by clear and convincing evidence in a court of competent jurisdiction that the Indemnitee's action or failure to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC"). Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of Directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested Directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought. To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith. Expenses actually and reasonably incurred by the Indemnitee in defending any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof. For purposes of this Agreement, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a Director, officer, employee, member, manager, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word "including" is used by way of illustration only and not by way of limitation. No amendment to the Articles or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to this Agreement, except to the extent that such amendment is required by law to be given effect. No amendment to the Articles or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by the Shareholders, except to the extent that such amendment is required by law to be given effect. In the event that the Company shall purport to adopt any amendment to its Articles or Regulations or take any other action the effect of which is to deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any such other law, such amendment shall apply only to acts or failures to act occurring entirely after the Effective Date thereof.

Continued Service. The Indemnitee shall continue to serve serve, at the will of the Company or in accordance with a separate contract to the extent that such a contract is in effect at the time in question, as a Director an officer of the Company so long as he is duly elected and qualified in accordance with the Second Amended and Restated Articles of Incorporation of the Company (the "Articles") and the Second Amended and Restated Code of Regulations of the Company (the "Regulations") or until he resigns in writing in accordance with applicable law. Initial Indemnity. The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party to any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative (other than an action by or in the right of the Company), by reason of the fact that he is or was a Director an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, or by reason of any action alleged to have been taken or omitted in any such capacity, against any and all costs, charges, expenses (including fees and expenses of attorneys or others; all such costs, charges, and expenses being herein jointly referred to as "Expenses"), judgments, fines, and amounts paid in settlement actually settlement, actually, and reasonably incurred by the Indemnitee in connection therewith, including any appeal of or from any judgment or decision, unless it is proved by clear if the Indemnitee acted in good faith and convincing evidence in a court of competent jurisdiction that the Indemnitee's action manner which he reasonably believed to be in or failure not opposed to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company. In addition, with respect to any criminal action or proceeding, indemnification hereunder shall be made only if the Indemnitee had no reasonable cause to believe his conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the Indemnitee did not satisfy the foregoing standard of conduct to the extent applicable thereto. The Company shall indemnify the Indemnitee if or when he is a party or is threatened to be made a party, to any threatened, pending, or completed action, suit, or proceeding by or in the right of the Company to procure a judgment in its favor, by reason of the fact that the Indemnitee is or was a Director an officer of the Company or is or was serving at the request of the Company as a director, trustee, officer, employee, member, manager, or agent of another corporation, domestic or foreign, nonprofit or for profit, a limited liability company, or a partnership, joint venture, trust, or other enterprise, against any and all Expenses actually and reasonably incurred by the Indemnitee in connection with the defense or settlement thereof or any appeal of or from any judgment or decision, unless it is proved by clear if the Indemnitee acted in good faith and convincing evidence in a court of competent jurisdiction that the Indemnitee's action manner he reasonably believed to be in or failure not opposed to act involved an act or omission undertaken with deliberate intent to cause injury to the Company or undertaken with reckless disregard for the best interests of the Company, except that no indemnification pursuant to this Section 2(b) shall be made in respect of any action or suit in which the only liability asserted against the Indemnitee is pursuant to Section 1701.95 of the Ohio Revised Code (the "ORC"). Any indemnification under Section 2(a) or 2(b) (unless ordered by a court) shall be made by the Company only as authorized in the specific case upon a determination that indemnification of the Indemnitee is proper in the circumstances because he has met the applicable standard of conduct set forth in Section 2(a) or 2(b). Such authorization shall be made (i) by the Board of Directors of the Company (the "Board") by a majority vote of a quorum consisting of Directors who were not and are not parties to or threatened with such action, suit, or proceeding, or (ii) if such a quorum of disinterested Directors is not available or if a majority of such quorum so directs, in a written opinion by independent legal counsel (designated for such purpose by the Board) which shall not be an attorney, or a firm having associated with it an attorney, who has been retained by or who has performed services for the Company, or any person to be indemnified, within the five years preceding such determination, or (iii) by the shareholders of the Company (the "Shareholders"), or (iv) by the court of common pleas or other court in which such action, suit, or proceeding was brought. To the extent that the Indemnitee has been successful on the merits or otherwise, including the dismissal of an action without prejudice, in defense of any action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue, or matter therein, he shall be indemnified against Expenses actually and reasonably incurred by him in connection therewith. Expenses actually and reasonably incurred by the Indemnitee in defending any such action, suit, or proceeding referred to in Section 2(a) or 2(b), or in defense of any claim, issue or matter therein, shall be paid by the Company as they are incurred in advance of the final disposition of such action, suit, or proceeding under the procedure set forth in Section 4(b) hereof. For purposes of this Agreement, references to "other enterprises" shall include employee benefit plans; references to "fines" shall include any excise taxes assessed on the Indemnitee with respect to any employee benefit plan; references to "serving at the request of the Company" shall include any service as a Director, officer, employee, member, manager, or agent of the Company which imposes duties on, or involves services by, the Indemnitee with respect to an employee benefit plan, its participants or beneficiaries; references to the masculine shall include the feminine; references to the singular shall include the plural and vice versa; the word "including" is used by way of illustration only and not by way of limitation. No amendment to the Second Amended and Restated Articles of Incorporation of the Company (the "Articles") or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to this Agreement, except to the extent that such amendment is required by law to be given effect. No amendment to the Articles or the Regulations shall deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any other applicable law as applied to any act or failure to act occurring in whole or in part prior to the date (the "Effective Date") upon which the amendment was approved by the Shareholders, except to the extent that such amendment is required by law to be given effect. In the event that the Company shall purport to adopt any amendment to its Articles or Regulations or take any other action the effect of which is to deny, diminish, or encumber the Indemnitee's rights to indemnity pursuant to the Articles, the Regulations, the ORC, or any such other law, such amendment shall apply only to acts or failures to act occurring entirely after the Effective Date thereof.