Common use of Exception to Right of Indemnification Clause in Contracts

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (i) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided, however, that the exclusion in this Section 10(a)(i) shall not limit Indemnitee’s right to receive from the Company advancement of Expenses incurred by Indemnitee in such a proceeding; or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, (B) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification to the extent such court shall deem proper; or (iii) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided; (c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, however, that the exclusion in this Section 10(a)(iincluding any Proceeding (or any part of any Proceeding) shall not limit Indemnitee’s right to receive from initiated by Indemnitee against the Company advancement or its directors, officers, employees or other indemnitees, unless (i) the Board of Expenses incurred by Indemnitee in such a proceeding; or Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction thatthe Company provides the indemnification, in connection with its sole discretion, pursuant to the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) powers vested in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, under applicable law; (Bd) with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below); (e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawful; providedin bad faith, that if such court shall determine, upon application, that, despite such adjudication, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification only to the extent of such court shall deem properspecific determination); or (iiif) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed is sought or a separate proceeding or action to act (1) in good faith establish rights and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (i) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided, however, that the exclusion in this Section 10(a)(i) shall not limit Indemnitee’s 's right to receive from the Company advancement of Expenses incurred by Indemnitee in such a proceeding; or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, (B) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s 's conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification to the extent such court shall deem proper; or (iii) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s 's action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company Companies shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (i) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee or the Apax Funds set forth in Section 9(c) above; or (ii) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company Companies within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; providedor (iii) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, however, that the exclusion in this Section 10(a)(iincluding any Proceeding (or any part of any Proceeding) shall not limit Indemnitee’s right to receive from the Company advancement of Expenses incurred initiated by Indemnitee against any of the Companies or its directors, officers, employees, agents, representatives or other indemnitees, unless (A) the Board of Directors of such Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (B) such Company provides the indemnification, in its sole discretion, pursuant to the powers vested in such a proceedingCompany under applicable law, or (C) such Proceeding is initiated by Indemnitee to enforce Indemnitee’ s rights under this Agreement; or (iiiv) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1i) in good faith and (2ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the such Company and, (B) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification to the extent such court shall deem proper; or (iiiv) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1i) in good faith and (2ii) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the such Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the applicable Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the applicable Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (i) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided, however, that the exclusion in this Section 10(a)(i) shall not limit Indemnitee’s right to receive from the Company advancement of Expenses incurred by Indemnitee in such a proceeding; or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, (B) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification to the extent such court shall deem proper; or (iii) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in ------------------------------------- this AgreementAgreement to the contrary, the Indemnitee shall not be entitled to any indemnification or advancement of Expenses for indemnification, and the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against and shall not indemnify, contribute or advance Expenses to the Indemnitee: (ia) with respect to any Proceeding for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided; (b) in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee and not by way of defense, howeverincluding any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, that officers, employees or other indemnitees, unless (i) the exclusion in this Section 10(a)(iBoard authorized the Proceeding (or any part of any Proceeding) shall not limit Indemnitee’s prior to its initiation or (ii) the Proceeding is brought to establish or enforce a right to receive from the Company advancement indemnification, contribution or an advance of Expenses incurred by Indemnitee under Section 10 hereof, the Statute, the Charter Documents, or other applicable law then in such a proceedingeffect; or (c) if a judgment or other final adjudication establishes that Indemnitee's actions or omissions to act were material to the Proceeding so adjudicated and constitute: (i) a violation of criminal law, except where the Indemnitee had reasonable cause to believe Indemnitee's conduct was lawful or had no reasonable cause to believe Indemnitee's conduct was unlawful; (ii) if indemnification is requested under a transaction from which the Indemnitee derived an improper personal benefit; (iii) a violation of Section 2(a607.0834 (unlawful distributions) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim FBCA; or (iv) willful misconduct or a conscious disregard for indemnification has arisen, Indemnitee (A) failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, (B) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification to the extent such court shall deem proper; or (iii) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, Proceeding by or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee the Company to indemnification procure a judgment in its favor or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be Proceeding by or in or not opposed to the best interests right of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawfula shareholder.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity indemnify an Indemnitee in connection with any claim made against Indemniteeclaim: (ia) for which payment has actually been made to or on behalf of the Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the United States Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided, however, that law of the exclusion in this Section 10(a)(i) shall not limit Indemnitee’s right to receive from the Company advancement of Expenses incurred by Indemnitee in such a proceedingUnited States; or (iic) if indemnification is requested under except as provided in Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that7(c), in connection with any Proceeding (or any part of any Proceeding) initiated by the subject Indemnitee, including, without limitation, any Proceeding (or any part of any Proceeding) initiated by the Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board specifically authorized the Indemnitee to bring the Proceeding out (or part of which the claim for indemnification has arisenProceeding, Indemnitee as applicable) prior to its initiation or (Aii) failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company andprovides the indemnification, (B) with respect to any criminal action or proceedingin its sole discretion, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification pursuant to the extent such court shall deem properpowers vested in the Company under applicable law; or (iiid) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with a Proceeding by or in the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests right of the Company, in respect of any claim, issue or (B) matter as to which the Indemnitee is shall have been adjudicated by final judgment in a court of law of competent jurisdiction to be liable for willful misconduct in the performance of its/his duty to the corporation Company unless and only to the extent that any court in which such court has not determined action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which as such court shall deem proper.; or (be) brought against it/him by reason of any alleged dishonesty or fraud on its/his part and in which the Indemnitee shall be deemed have been adjudicated by final judgment in a court of law or other tribunal of competent jurisdiction to have acted in good faith if committed acts (i) of active and deliberate dishonesty, (ii) with actual dishonest purpose and intent, and (iii) which acts were material to the cause of action so adjudicated; or (f) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnity; or (g) arising out of the Indemnitee’s action is based on breach of an employment agreement between the records Indemnitee and the Company or books any of account of the Enterpriseits subsidiaries, including financial statementsif any, or on information supplied to any other agreement between the Indemnitee by and the directorsCompany or any of its subsidiaries, managers, officers, employees, agents or representatives 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 but only to the Enterprise extent that such breach shall have been determined to have occurred by an independent certified public accountant or by an appraiser final judgment in a court of law or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, tribunal of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidencecompetent jurisdiction. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; provided, that the foregoing shall not affect the rights of Indemnitee; or (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided, however, that the exclusion notwithstanding any limitation set forth in this Section 10(a)(i9(b) regarding the Company’s obligation to provide indemnification, Indemnitee shall not limit Indemnitee’s right be entitled under Section 5 to receive from the Company advancement advances of Expenses incurred by with respect to any such claim unless and until a court having jurisdiction over the claim shall have made a final judicial determination (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee in such a proceedinghas violated said statute; or (iic) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject any Proceeding (or any part of the any Proceeding) initiated by Indemnitee, including any Proceeding out (or any part of which the claim for indemnification has arisen, any Proceeding) initiated by Indemnitee (A) failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of against the Company and, (B) with respect to any criminal action or proceeding, Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful; provided, that if such court shall determine, upon application, that, despite such adjudication, but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification to the extent such court shall deem proper; or (iii) if indemnification is requested under Section 2(b) and it has been adjudicated finally by a court of competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed to act (1) in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the its directors, managers, officers, employees, agents agents, representatives or representatives other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation, (ii) the Enterprise Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the course of their duties, Company under applicable law or on the advice of legal counsel for the Enterprise or on information or records given or reports made (iii) such Proceeding is initiated by Indemnitee to the Enterprise by an independent certified public accountant or by an appraiser or other expert or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification enforce Indemnitee’s rights under this Agreement. Whether or not the foregoing provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion by clear and convincing evidence. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision, provided, that the foregoing shall not affect the rights of Indemnitee or the Secondary Indemnitors set forth in Section 8(c) above; (b) in any suit in which a final judgment (or other final adjudication not subject to further appeal) is made against Indemnitee for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amendedAct, or similar provisions of state statutory law or common law; provided; (c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, however, that the exclusion in this Section 10(a)(iincluding any Proceeding (or any part of any Proceeding) shall not limit Indemnitee’s right to receive from initiated by Indemnitee against the Company advancement or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of Expenses incurred by Indemnitee in such a proceeding; or any Proceeding) prior to its initiation or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction thatthe Company provides the indemnification, in connection with its sole discretion, pursuant to the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) powers vested in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, under applicable law; (Bd) with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication not subject to further appeal that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below); (e) a final judgment or other final adjudication not subject to further appeal is made that Indemnitee’s conduct was unlawful; providedin bad faith, that if such court shall determine, upon application, that, despite such adjudication, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification only to the extent of such court shall deem properspecific determination); (f) if Indemnitee is held liable therefor (including pursuant to any settlement), in connection with any claim for reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002, as amended (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act); or (iiig) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication not subject to further appeal may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed is sought or a separate proceeding or action to act (1) in good faith establish rights and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act, or in any registration statement filed with the SEC under the Securities Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Securities Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Securities Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision, provided, that the foregoing shall not affect the rights of Indemnitee or the Secondary Indemnitors set forth in Section 8(f) above; (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided; (c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, however, that the exclusion in this Section 10(a)(iincluding any Proceeding (or any part of any Proceeding) shall not limit Indemnitee’s right to receive from initiated by Indemnitee against the Company advancement or its directors, officers, employees or other indemnitees, unless (i) the Board of Expenses incurred by Indemnitee in such a proceeding; or Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction thatthe Company provides the indemnification, in connection with its sole discretion, pursuant to the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) powers vested in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, under applicable law; (Bd) with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below); (e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawful; providedin bad faith, that if such court shall determine, upon application, that, despite such adjudication, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification only to the extent of such court shall deem properspecific determination); or (iiif) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed is sought or a separate proceeding or action to act (1) in good faith establish rights and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.

Exception to Right of Indemnification. (a) Notwithstanding any provision in this Agreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (ia) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision, provided, that the foregoing shall not affect the rights of Indemnitee [or the Fund Indemnitors] set forth in Section 8(c) above; (b) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of any of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of state statutory law or common law; provided; (c) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, however, that the exclusion in this Section 10(a)(iincluding any Proceeding (or any part of any Proceeding) shall not limit Indemnitee’s right to receive from initiated by Indemnitee against the Company advancement or its directors, officers, employees or other indemnitees, unless (i) the Board of Expenses incurred by Indemnitee in such a proceeding; or Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) if indemnification is requested under Section 2(a) and it has been adjudicated finally by a court of competent jurisdiction thatthe Company provides the indemnification, in connection with its sole discretion, pursuant to the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee (A) failed to act (1) powers vested in good faith and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company and, under applicable law; (Bd) with respect to any criminal action remuneration paid to Indemnitee if it is determined by final judgment or proceedingother final adjudication that such remuneration was in violation of law (and, in this respect, both the Company and Indemnitee had reasonable cause have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to believe appropriate courts for adjudication, as indicated in the last paragraph of this Section 9 below); (e) a final judgment or other final adjudication is made that Indemnitee’s conduct was unlawful; providedin bad faith, that if such court shall determine, upon application, that, despite such adjudication, knowingly fraudulent or deliberately dishonest or constituted willful misconduct (but in view of all of the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification hereunder, the Indemnitee shall be entitled to such indemnification only to the extent of such court shall deem properspecific determination); or (iiif) if indemnification on account of conduct that is requested under Section 2(b) and it has been adjudicated finally established by a court final judgment as constituting a breach of competent jurisdiction thatIndemnitee’s duty of loyalty to the Company or resulting in any personal profit or advantage to which Indemnitee is not legally entitled. For purposes of this Section 9, a final judgment or other adjudication may be reached in either the underlying proceeding or action in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, (A) Indemnitee failed is sought or a separate proceeding or action to act (1) in good faith establish rights and (2) in a manner Indemnitee reasonably believed to be in, or not opposed to, the best interests of the Company, or (B) Indemnitee is liable to the corporation and such court has not determined that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, Indemnitee shall not be entitled to payment of Expenses hereunder unless the court in which such Proceeding was brought shall determine upon application that in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such Expenses which such court shall deem proper. (b) Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, managers, officers, employees, agents or representatives 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 or advisor selected by the Enterprise. In addition, the knowledge and/or actions, or failure to act, of any director, manager, officer, employee, agent or representative of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification liabilities under this Agreement. Whether Any provision herein to the contrary notwithstanding, the Company shall not be obligated pursuant to the terms of this Agreement to indemnify Indemnitee or not otherwise act in violation of any undertaking appearing in and required by the foregoing rules and regulations promulgated under the Securities Act of 1933, as amended (the “Act”), or in any registration statement filed with the SEC under the Act. Indemnitee acknowledges that paragraph (h) of Item 512 of Regulation S-K currently generally requires the Company to undertake in connection with any registration statement filed under the Act to submit the issue of the enforceability of Indemnitee’s rights under this Agreement in connection with any liability under the Act on public policy grounds to a court of appropriate jurisdiction and to be governed by any final adjudication of such issue. Indemnitee specifically agrees that any such undertaking shall supersede the provisions of this Section 10(b) are satisfied, it shall in any event be presumed that Indemnitee has at all times acted in good faith Agreement and in a manner he reasonably believed to be in or not opposed to the best interests of the Company. Anyone seeking to overcome this presumption shall have the burden of proof and the burden of persuasion bound by clear and convincing evidenceany such undertaking. (c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he reasonably believed to be in or not opposed to the best interests of the Company or, solely with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his conduct was unlawful.