Common use of Exclusions Clause in Contracts

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (ior for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not apply to any personal or umbrella liability insurance maintained by Indemnitee; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether or from the securities are subject to the requirements purchase or sale by Indemnitee of such provisions; or securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act of 2002 (ii“SOX”); (c) to indemnify for any reimbursement of of, or payment to, 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 SOX or any formal policy of the Xxxxxxxx-Xxxxx Act of 2002 Company adopted by the Board (the “Xxxxxxxx-Xxxxx Act”or a committee thereof), or the payment any other remuneration paid to the Company of profits arising from the purchase and sale Indemnitee if it shall be determined by Indemnitee of securities a final judgment or other final adjudication that such remuneration was in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)law; (bd) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee is indemnified Company under this Agreement or under any directors’ and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action officers’ liability insurance policies maintained by or the Company in the right of the Company, suit for which indemnification or advancement is being sought as described in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properSection 12; or (e) for to provide any judgment, fine indemnification or penalty which the Company advancement of expenses that is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; (ib) for any transaction from which Indemnitee derived an improper personal benefit; (c) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bd) except as otherwise provided if a court having jurisdiction in Sections 6.01(ethe matter shall finally determine that such indemnification is not lawful under any applicable statute or public policy (and, in this respect, both the Company and Indemnitee 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 appropriate courts for adjudication), prior to a Change of Control, ; or (e) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including or any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized Company is expressly required by law to make the indemnification, (ii) the Proceeding was authorized by the Board of Directors of the Company, (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , or (civ) Indemnitee initiated the Proceeding pursuant to the extent that Section 11 of this Agreement and Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) successful in connection with a judicial action by whole or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default part in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationProceeding.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; or (b) for any Proceedings with respect to which final judgment is rendered against Indemnitee for payment of (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) any Proceeding involving the enforcement of non-compete and/or non-disclosure agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; or (d) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or; (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationindemnity; (f) on account of Indemnitee’s conduct which is finally adjudged to have been intentional misconduct, a knowing violation of applicable law or a transaction from which Indemnitee derived an improper personal benefit; or (g) arising out of Indemnitee’s breach of an employment agreement or any other agreement with the Company (if any) or, if applicable, any subsidiary or affiliate of the Company.

Exclusions. Notwithstanding NOTWITHSTANDING ANY PROVISION IN THIS AGREEMENT, THE COMPANY IS NOT OBLIGATED UNDER THIS AGREEMENT TO MAKE ANY INDEMNIFICATION PAYMENT TO INDEMNITEE IN CONNECTION WITH ANY PROCEEDING: (a) for which payment has actually been made to or on behalf of Indemnitee under any provision of this Agreement insurance policy or other indemnity provision, except to the extent provided in Section 16(b) and unless Indemnitee ultimately is successful on the merits except with respect to any such claim, excess beyond the Company shall not be obligated amount paid under this Agreement to make any insurance policy or other indemnity in connection with any claim made against Indemnitee:provision; or (ab) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any other provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) 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; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) Other than as provided in Section 4, for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (b) except as otherwise provided in Sections 6.01(e), prior to a Change Section 11(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (whether on Indemnitee’s own behalf or by or in the right of the Company to procure a judgment in its favor), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents, fiduciaries or other indemniteesindemnitees and not by way of defense, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not [i] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or, (ii) affect the rights of Indemnitee or the Secondary Indemnitors (as defined below) as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActSarbanes Oxley Act of 2002 (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(c) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) except as provided in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseXxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgment, fine payment to Indemnitee that is finally determined to be unlawful under the procedures and subject to the presumptions of this Agreement. The exclusion in Section 8.1(c) shall not apply to counterclaims or penalty which the Company is prohibited affirmative defenses asserted by applicable law from paying as indemnificationIndemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not [(i)] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or, (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActAct of 2002 (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(c) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) 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; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-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 XxxxxxxxSxxxxxxx-Xxxxx Act);; or (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification or hold harmless payment: (a) in connection with any claim made against Indemnitee:Indemnitee for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity provision or otherwise; (ab) in connection with any claim made against Indemnitee for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-incentive based or equity-based compensation or of any profits realized by the 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 (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 Sarbanes Oxley Act);; or (bc) except as otherwise provided in Sections 6.01(e)14(e)-(f) hereof, prior to a Change of in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any counterclaim that the Company or its directors, officers, employees or other indemnitees assert against Indemnitee or any affirmative defense that the Company or its directors, officers, employees or other indemnitees raise, which, by any doctrine of issue or claim preclusion, could result in liability to Indemnitee, or (iiiii) the Company provides the indemnificationindemnification or hold harmless payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for any Proceedings with respect to which final judgment is rendered against Indemnitee for payment of (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (b) any Proceeding involving the enforcement of non-compete and/or non-disclosure agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; or (c) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; or (b) for any Proceedings with respect to which final judgment is rendered against Indemnitee for payment of (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-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 XxxxxxxxSxxxxxxx-Xxxxx Act);, or (bc) any Proceeding involving the enforcement of non-compete and/or non-disclosure agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; or (d) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity or provide any benefit to Indemnitee under this Agreement or otherwise, in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid[, subject to any subrogation rights set forth in Section 15]; (ib) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to the requirements of such provisions; or any settlement arrangements); (iic) for any 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 Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the ““ Xxxxxxxx-Xxxxx Act”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), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceedingd) initiated by Indemnitee and not by way of defense, including against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) otherwise authorized in Section 12(d), (iv) brought to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; discharge Indemnitee’s fiduciary responsibilities, whether under ERISA or otherwise, or (dv) in connection with a judicial action otherwise required by applicable law or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper’s bylaws; or (e) for any judgment, fine or penalty which the Company is if prohibited by applicable law from paying as indemnificationdetermined in a final adjudication not subject to further appeal.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment paid other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default intentional misconduct in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law;; or (c) for the payment of amounts required to be reimbursed to the extent that Indemnitee is indemnified and actually received such payment other than Company pursuant to this Agreement;Section 304 of the Xxxxxxxx-Xxxxx Act of 2002, as amended, or any similar successor statute; or (d) in connection with for any payment to Indemnitee that is determined to be unlawful by a judicial action by final judgment or in the right other adjudication of the Companya court or arbitration, in respect arbitral or administrative body of any claim, issue or matter competent jurisdiction as to which there is no further right or option of appeal or the Indemnitee shall have been adjudicated by final judgment in a court of law to time within which an appeal must be liable for fraud or willful default in filed has expired without such filing and under the performance of his duty procedures and subject to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication presumptions of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properthis Agreement; or (e) for in connection with any judgment, fine Proceeding initiated by Indemnitee to enforce its rights under this Agreement if a court of competent jurisdiction determines by final judicial decision that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or penalty which the Company is prohibited was frivolous. The exclusion in Section 8.1(c) shall not apply to counterclaims or affirmative defenses asserted by applicable law from paying as indemnificationIndemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification, advance expenses, hold harmless or exoneration payment in connection with any claim made against Indemnitee: (a) for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement provision or otherwise; (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any successor rule) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control14(f) and 14(g) hereof, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with any Proceeding instituted by Indemnitee to establish, enforce or interpret a judicial action by right to indemnification under this Agreement or in the right of the Company, in respect of any claim, issue other statute or matter as to which the Indemnitee shall have been adjudicated by final judgment in law or otherwise if a court of law to be liable for fraud competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or willful default in the performance of his duty to the Company unless and only was frivolous; (e) to the extent it is determined by a final court order or judgment by a court of competent jurisdiction, to which all rights of appeal have either lapsed or been exhausted, that any such indemnification, advance expenses, hold harmless or exoneration payment is unlawful; (f) to the extent Indemnitee’s conduct is established by a final order or judgment by a court in of competent jurisdiction, to which all rights of appeal have either lapsed or been exhausted, that such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee conduct is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properknowingly fraudulent; or (eg) for any judgmentamounts paid in settlement of a Proceeding effected without the Company’s written consent (which shall not be unreasonably withheld); provided, fine however, that the Company may decline to consent to (or penalty which otherwise admit or agree to any liability for indemnification hereunder in respect of) any proposed settlement if the Company is prohibited by applicable law from paying as indemnificationalso a party in such Proceeding and determines in good faith that such settlement is not in the best interests of the Company and its stockholders.

Exclusions. Notwithstanding 3.1 In addition to the limitations and exclusions otherwise set out in this Agreement (but in the event of any conflict or inconsistency between the exclusions set out in this paragraph 3 and any other provision of this Agreement Agreement, this paragraph 3 shall take precedence) the covenants contained in paragraph 2 shall not apply to a Tax Liability (and unless Indemnitee ultimately neither shall the Sellers have any liability under the Tax Warranties) to the extent that: 3.1.1 such Tax Liability is successful the subject of or was taken into account in computing the amount of an allowance, accrual, reserve or provision for Tax in the Last Balance Sheet or was specifically referred to in the 2008 Accounts or in the notes to the 2008 Accounts; 3.1.2 such Tax Liability was actually paid or discharged on or before Completion; 3.1.3 the matter or any Event giving rise to such Tax Liability arises, or such Tax Liability arises or is increased, as a result of a change on or after Completion in the accounting reference date of any Group Company or in any accounting policy or any Tax reporting practice of any Group Company other than a change (i) which is necessary in order to comply with applicable law or generally accepted accounting principles applicable to any Group Company as at Completion or (ii) pursuant to a legally binding agreement entered into by a Group Company on or before Completion and which is legally binding on the merits relevant Group Company; 3.1.4 the matter or any Event giving rise to such Tax Liability arises or such Tax Liability arises or is increased as a result of any default or delay by the Buyer or any Group Company after Completion, including: (i) any delay in paying or satisfying any Tax Liability; (ii) any delay or default in submitting any Tax Return required to be submitted by them; (iii) submitting such Tax Return outside the appropriate time limits; or (iv) submitting such Tax Return otherwise than on a proper basis, in each case after Completion (in each case other than as a result of the Sellers failing to comply with respect their obligations under paragraph 6 or (in relation to interest and penalties only) in the circumstances described in paragraph 5.2); 3.1.5 the matter or any Event giving rise to such claim, Tax Liability arises or such Tax Liability arises in the ordinary course of business of a Group Company shall not be obligated under this Agreement for the period commencing immediately after the Last Accounting Date and ending on the Completion Date; 3.1.6 the matter or any Event giving rise to make any indemnity in connection with any claim made against Indemniteesuch Tax Liability arises or such Tax Liability arises or is increased as a result of: (a) for a change in Tax rates or in Tax Legislation (or in its interpretation on the basis of case law) made after the date of this Agreement; or (b) a change or withdrawal after the date of this Agreement of any previously published practice or extra-statutory concession of any Tax Authority, (c) without limitation of paragraph 3.1.6(a), the imposition of a Tax not in force at the date of this Agreement; in each case with or without retrospective effect; 3.1.7 the matter or any Event giving rise to such Tax Liability or such Tax Liability would not have arisen but for, or such Tax Liability is increased by any voluntary act or omission of any Buyer’s Group Undertaking or any employee of any Buyer’s Group Undertaking after Completion other than any such act or omission which (i) an accounting the relevant Buyer’s Group Undertaking or relevant employee of profits made from the purchase and sale (a Buyers’ Group Undertaking was obliged to or sale and purchase) omit to carry out by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common applicable law, regardless or pursuant to a binding agreement entered into by a Group Company on or before Completion and which is legally binding on such Buyer’s Group Undertaking or relevant employee of whether the securities are subject to the requirements of such provisions; a Buyer’s Group Undertaking, or (ii) any reimbursement was in the ordinary course 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 business of the relevant Group Company; 3.1.8 recovery of such Tax Liability: (i) has been made under the Sellers’ Warranties or otherwise under any other provision of this Agreement or any other agreement with either Seller or under statute, as required or (ii) has been made from any person other than a Seller’s Group Undertaking with respect to the Tax Liability, whether under applicable law, rule or regulation, agreement, arrangement, undertaking, insurance policy or otherwise howsoever; 3.1.9 the matter or any Event giving rise to such Tax Liability or such Tax Liability would not have arisen but for the winding up of, or the cessation of trade or business by, or a change in the nature or conduct of the trade or business of, a Group Company after Completion in each case other than pursuant to a legally binding agreement entered into by a Group Company on or before Completion and which is legally binding on the relevant Group Company; 3.1.10 the matter or any Event giving rise to such Tax Liability arises, or such Tax Liability arises or is increased, in consequence of any failure by the Buyer to comply with any of its obligations under this Schedule; 3.1.11 any Relief (other than a Post Completion Relief) or a Relief included as an asset in the Exchange Act Last Balance Sheet is available, or is for no consideration made available by the Sellers to the relevant Group Company to set against or otherwise mitigate such Tax Liability, and so that: (including a) any Relief that is so available in relation to more than one Tax Liability to which this Schedule applies shall be deemed, so far as possible, to be used in such reimbursements that arise from an accounting restatement a way as to reduce to the maximum extent possible the Sellers total liability under this Schedule or for breach of any of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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);Tax Warranties; and (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part the amount of any Proceeding) initiated by Indemnitee, including any Proceeding (Relief which has been taken into account for the purposes of this paragraph 3.1.11 to reduce the liability of the Sellers under this Schedule or any part for breach of any Proceeding) initiated by Indemnitee against of the Company or its directors, officers, employees or other indemnitees, unless (i) Tax Warranties shall not be taken into account a further time for the Board authorized the Proceeding (or any part purposes of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable lawthis paragraph 3.1.11; (c) any Relief which has been taken into account in computing (and so eliminating or reducing) any provision for Taxation in the Last Balance Sheet (in this paragraph 3.1.11, a “Relevant Provision”) shall not be treated for the purposes of this paragraph 3.1.11 as available to set against or otherwise mitigate a Tax Liability (in this paragraph 3.1.11, a “Relevant Tax Liability”) unless: (i) such Relief was so taken into account for the purposes of the provision in the Last Balance Sheet for the Relevant Tax Liability; or (ii) (and to the extent that Indemnitee that) such Relief could be so utilised to set against or otherwise mitigate the Relevant Tax Liability without resulting in the Relevant Provision (judged at the time of such utilisation) to become an underprovision in respect of the Tax Liability the subject of such Relevant Provision; 3.1.12 the matter or any Event giving rise to such Tax Liability, or such Tax Liability would not have arisen but for: (a) the making of a claim, election, surrender or disclaimer, the giving of a notice or consent, or the doing of any other thing under the provisions of any Tax Legislation, in each case after Completion by any Buyer’s Group Undertaking or any Representative of a Buyer’s Group Undertaking, other than (i) at the Sellers’ written request in accordance with paragraph 6 or (ii) pursuant to a legally binding agreement entered into on or before Completion; or (b) the failure or omission on the part of any Group Company to make any such valid claim, election, surrender or disclaimer, or to give any such notice or consent or to do any other such thing, as the Sellers may require in respect of periods or matters for which the Sellers have conduct under paragraph 6 or where the making, giving or doing of which was taken into account in the calculation of any allowance, accrual, reserve or provision for Tax in the Last Balance Sheet or was otherwise taken into account in calculating creditors or deducted in calculating debtors in the Last Balance Sheet; 3.1.13 such Tax Liability is indemnified and actually a liability to fines, interest or penalties in respect of an underpayment on or before Completion of an instalment payment of Tax insofar as such underpayment would not have been an underpayment but for an Event occurring or income, profits or gains earned, accrued or received after Completion PROVIDED THAT the amount of any such instalment payment in respect of which there has been such an underpayment was estimated by or on behalf of the relevant Group Company on a reasonable basis taking account of, without limitation, then available current projections or estimates (if any) for the relevant accounting or other Tax period; or 3.1.14 the matter or any Event giving rise to such Tax Liability or such Tax Liability arises or is increased as a result of exercise of share options by employees of a Group Company after Completion or the grant of share options after Completion or the assignment or release of a share option after Completion or the provision of a benefit in connection with a share option after Completion (in each case other than pursuant to a legally binding commitment in place at Completion). 3.2 For the avoidance of doubt, the Sellers shall have no liability under this Agreement; (d) in connection with a judicial action by or in the right of the Company, Schedule in respect of any claimnon-availability, issue inability to use, loss or matter as restriction of any Relief (“Failure of Relief”) where such Failure of Relief does not give rise to a Tax Liability to which this Schedule applies. 3.3 The provisions of this paragraph 3 of this Schedule shall also operate to limit or reduce the Indemnitee liability of the Sellers in respect of claims under the Tax Warranties or under paragraph 12 (subject to paragraph 12.3) and in any case when the provisions of this paragraph 3 conflict with the other provisions of the Agreement which apply in respect of claims under this Schedule or under the Tax Warranties then the provisions of this paragraph 3 shall have been adjudicated by final judgment prevail. References in this paragraph 3 to a court Tax Liability shall be read to include any liability for a claim under the Tax Warranties or under paragraph 12. 3.4 For the avoidance of law to be liable for fraud or willful default doubt, the exclusions and limitations otherwise set out in the performance of his duty this Agreement shall, to the extent applicable, exclude or limit the liability of the Sellers under this Schedule or under any of the Tax Warranties. 3.5 The covenant given by the Sellers to the Buyer in paragraph 2.2 shall not apply to Tax for which a Group Company unless and only is liable to the extent that any court amount in which respect of such action was brought shall determine upon application that, despite Tax has been recovered by any Group Company or person connected for the adjudication of liability but in view of all the circumstances purposes of the case, relevant Tax with any Group Company under any relevant statutory provision (and the Indemnitee Buyer shall procure that no such recovery is fairly and reasonably entitled sought to indemnification for the extent that a payment in respect of such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company Tax is prohibited by applicable law from paying as indemnificationmade under this Schedule).

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; law or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (other than any cross claim or counterclaim asserted by the Indemnitee), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) for conduct that is established by a final judgment not subject to further appeal to be in bad faith, knowingly fraudulent or deliberately dishonest or constituting willful misconduct (but only to the extent that Indemnitee is indemnified and actually received of such payment other than pursuant to this Agreement;specific determination); or (d) in connection with for conduct that is established by a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in not subject to further appeal as constituting a court breach of law to be liable for fraud or willful default in the performance Indemnitee’s duty of his duty loyalty to the Company unless and only or resulting in any personal profit or advantage to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Indemnitee is not legally entitled. For purposes of the caseforegoing sentence, a final judgment may be reached solely in the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationunderlying proceeding.

Exclusions. Notwithstanding The foregoing indemnity in Section 7.1.1 shall not extend to any provision Expense of this Agreement and unless any Indemnitee ultimately is successful on to the merits extent attributable to one or more of the following: (1) any representation or warranty by such Indemnitee or any Related Indemnitee (as defined below) thereof in the Operative Agreements or any Pass Through Agreements being incorrect in any material respect; (2) the failure by such Indemnitee or Related Indemnitee thereof to perform or observe any agreement, covenant or condition in any of the Operative Agreements or any Pass Through Agreements; (3) acts or omissions involving the willful misconduct or gross negligence of such Indemnitee or Related Indemnitee thereof (other than gross negligence imputed to such Indemnitee or Related Indemnitee thereof solely by reason of its interest in the Aircraft); (4) in the case of any Note Holder, a disposition (voluntary or involuntary) by such Note Holder of all or any part of its interest in an Equipment Note or, in the case of any other Indemnitee, a disposition by such Indemnitee of all or any part of such Indemnitee’s interest in the Airframe, any Engine, Operative Agreements or any Pass Through Agreements; (5) losses arising out of inspection rights under the Trust Indenture; (6) other than during the continuation of an Event of Default, the authorization or giving or withholding of any future amendments, supplements, waivers or consents with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Operative Agreements or any Pass Through Agreements, which amendments, supplements, waivers or consents are not required pursuant to the terms of the Operative Agreements or any Pass Through Agreements and not requested by Owner; (7) any loss of tax benefits, any Tax, or increase in tax liability under any tax law whether or not Owner is required to indemnify thereof or pursuant to this Agreement; (8) any fine or expense incurred by any Indemnitee as a result of such Indemnitee’s having engaged in a “prohibited transaction” within the meaning of Section 16(b) 406 of ERISA or Section 4975 of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject Code; (9) any amount which constitutes an expense that is to be borne by any Indemnitee pursuant to the requirements Operative Agreements or any Pass Through Agreements; (10) any costs associated with overhead or normal administration of the Collateral; (11) any amount which constitutes a loss of future profits; (12) acts or omissions involving the negligence of such provisionsIndemnitee in the operation of an aircraft which is involved in an accident with the Aircraft or an aircraft on which an Engine is installed; (13) any amount to the extent attributable to the failure of the Mortgagee, Subordination Agent or Pass Through Trustee to distribute funds received and distributable by it in accordance with the terms of the Trust Indenture, the Intercreditor Agreement or the Pass Through Trust Agreement, respectively; (14) except to the extent attributable to acts or event occurring on or prior thereto, acts or events which occur after the termination of the Trust Indenture in accordance with its terms; (15) any amount resulting from any Lien on the Collateral which such Indemnitee or any of its Related Indemnitees is required to discharge under the Operative Agreements or any Pass Through Agreement; (16) amounts to the extent attributable to the offer or sale by such Indemnitee or any Related Indemnitee of any interest in the Aircraft, any Equipment Note, any Pass Through Certificate or any similar interest in violation of the Securities Act, other applicable federal, state or foreign securities laws or any other law on or prior to the applicable Issuance Date; or (ii17) any reimbursement amounts related to activities or transactions of the Company by such 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part Related Indemnitee) not arising out of any Proceeding) initiated by Indemniteeor resulting from, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant attributable to the powers vested in transactions contemplated by the Company under applicable law; (c) to Operative Agreements or the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationPass Through Agreements.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity or provide any benefit to Indemnitee under this Agreement or otherwise, in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid[, subject to any subrogation rights set forth in Section 15]; (ib) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to the requirements of such provisions; or any settlement arrangements); (iic) for any 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 Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx“ Sxxxxxxx-Xxxxx Act”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 XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceedingd) initiated by Indemnitee and not by way of defense, including against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) otherwise authorized in Section 12(d), (iv) brought to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; discharge Indemnitee’s fiduciary responsibilities, whether under ERISA or otherwise, or (dv) in connection with a judicial action otherwise required by applicable law or in the right of the Company, in respect of any claim, issue ’s bylaws; or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is if prohibited by applicable law from paying as indemnificationdetermined in a final adjudication not subject to further appeal.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity indemnify in connection with any claim made against Indemniteewith: (a) Any claim made against Indemnitee for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of reimbursement to the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 Company in each case as required 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 (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); (b) except as otherwise For an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or any similar successor statute, provided that the foregoing shall not relieve the Company of its obligations to provide for advance of Expenses in Sections 6.01(eaccordance with Section 4.1 unless the party making the determination of entitlement to indemnification pursuant to Article 5 of this Agreement reasonably determines that Indemnitee clearly violated Section 16(b) and must disgorge the profits to the corporation. Notwithstanding anything to the contrary stated or implied in this Section 3.4(b), prior indemnification pursuant to a Change of Control, in connection with this Agreement relating to any Proceeding against Indemnitee for an accounting of profits made from the purchase or sale by Indemnitee of securities of the Company pursuant to the provisions of Section 16(b) of the Exchange Act or similar provisions of any federal, state or local laws shall not be prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits from Indemnitee is permitted under Section 16(b) of the Exchange Act or similar provisions of any federal, state or local laws; (c) Except as contemplated by Section 6.2, any action, suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, Indemnitee (including any Proceeding such action, suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees), unless (i) the Board of Directors authorized the Proceeding action, suit or other proceeding (or any part of any Proceedingthereof) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; law or (ciii) to unless the extent that Indemnitee Proceeding is indemnified and actually received such payment instituted after a Change in Control (other than pursuant a Change in Control approved by a majority of the directors on the Board who were directors immediately prior to this Agreementsuch Change in Control); (d) Any claim, issue or matter in connection with a judicial action Proceeding by or in the right of the Company, Company to procure a judgment in respect of any claim, issue or matter its favor as to which the Indemnitee shall have been adjudicated by final judgment in a court of law adjudged to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any the court in which such action Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification indemnity for such Expenses as such expenses which the court shall deem properdetermine; or (e) for any judgmentAny claim, fine issue or penalty matter in a with respect to which the Company indemnification or reimbursement is prohibited by applicable law from paying as indemnificationSection 18(k) of the Federal Deposit Insurance Act and part 359 of the Federal Deposit Insurance Corporation’s Rules and Regulations and any successor regulations thereto.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company Endo shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision in the Corporate Documents, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision. In the event that such actual payment is made under any insurance policy or indemnity provision after Endo has made an indemnity payment under this Agreement, Indemnitee shall promptly reimburse Endo for such indemnity in the amount of such payment; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange 1934 Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 1934 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or initiation, (ii) the Company Proceeding is for enforcement of this Agreement (to the extent that Indemnitee prevails), or (iii) Endo provides the indemnification, in its sole discretion, pursuant to the powers vested in Endo under the Company under applicable law; (c) to laws of the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;State of Delaware; or (d) for which the Reviewing Party shall have determined (in connection with a judicial action by or written opinion, in any case in which the right Independent Counsel is involved) that Indemnitee would not be permitted to be indemnified under the laws of the CompanyState of Delaware; provided, in respect of any claimhowever, issue or matter as to which the Indemnitee shall have been adjudicated the right to commence litigation in any court in the States of Pennsylvania or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by final judgment the court or challenging any such determination by the Reviewing Party or any aspect thereof, including the legal or factual bases thereof, and Endo hereby consents to service of process and to appear in any such proceeding. Any determination by the Reviewing Party otherwise shall be conclusive and binding on Endo and Indemnitee. If Indemnitee commences legal proceedings in a court of law competent jurisdiction to secure a determination that Indemnitee should be indemnified under the laws of the State of Delaware, any determination made by the Reviewing Party that Indemnitee is not entitled to be liable for fraud or willful default in indemnified under the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances laws of the case, the State of Delaware shall not be binding until a final judicial determination is made (as to which all rights of appeal therefrom have been exhausted or lapsed) that Indemnitee is fairly and reasonably not entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which be so indemnified under the Company is prohibited by applicable law from paying as indemnificationlaws of the State of Delaware.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except (i) with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision, and (ii) with respect to any Expenses, amounts paid in settlement by Indemnitee, or the amount of judgments or fines against Indemnitee by reason of any Proceeding involving Indemnitee that are advanced to Indemnitee by the Company’s manager, Westech Investment Advisors, Inc. or any successor-in-interest or affiliate of manager, and, in any such event, the Company shall promptly reimburse manager for all such advances, and manager may initiate an action under Section 11 hereof against the Company to obtain such reimbursement; or (b) during or attributable to the period of time that the Company is registered as a reporting company under Section 12(g) of the Exchange Act, for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act Act; or (c) during or similar provisions attributable to the period of state statutory law or common law, regardless of whether time that the securities are Company is subject to regulation as a business development company under the requirements Investment Company Act of such provisions; or (ii) any 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 Company1940, 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 (the “Xxxxxxxx-Xxxxx Act”)amended, or the payment for liability to the Company or to the Company’s stockholders to which Indemnitee becomes subject by reason of profits arising from willful misfeasance, bad faith, gross negligence or reckless disregard of Indemnitee’s duties in the purchase and sale conduct of his office to the extent indemnity for any such liability is proscribed by Indemnitee Section 17(h) of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx said Act);; or (bd) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee prior to a Change of Control against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c. The provisions of this Section 6(d) shall not apply to any action brought by Indemnitee against the extent that Indemnitee is indemnified and actually received such payment other than Company pursuant to Section 11 of this Agreement to enforce this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of this Agreement to the contrary (including Section 3.01 and unless Indemnitee ultimately is successful on the merits with respect to any such claimSection 4.01), the Company shall not be obligated under this Agreement to make any indemnity indemnify in connection with any claim made against Indemniteewith: (a) for 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 the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any for reimbursement of to 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 Company in each case as required 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 (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); (b) except as otherwise provided in Sections 6.01(e)Except for an action, prior to a Change of Controlsuit or other proceeding contemplated by Section 8.06, in connection with any Proceeding action, suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, Indemnitee (including any Proceeding (such action, suit or any other proceeding [or part of any Proceeding) thereof] initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees), unless (i) the Board authorized the Proceeding action, suit or other proceeding (or any part of any Proceedingthereof) prior to its initiation initiation, or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) Any claim, issue or matter in connection with a judicial action Proceeding by or in the right of the Company, Company to procure a judgment in respect of any claim, issue or matter its favor as to which the Indemnitee shall have been adjudicated by final judgment in a court of law adjudged to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any the Delaware Chancery Court or the court in which such action Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification indemnity for such Expenses as expenses which the Delaware Chancery Court or such other court shall deem proper; or (ed) Any claim made against Indemnitee for which payment has actually been made to or on behalf of Indemnitee under any judgmentinsurance policy or other indemnity provision, fine except with respect to any excess beyond the amount paid under any insurance policy or penalty which the Company is prohibited by applicable law from paying as indemnificationother indemnity provision.

Exclusions. Notwithstanding any other provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall will not be obligated under this Agreement to make any indemnity provide indemnification in connection with any claim made against Indemniteethe following: (a) any Proceeding or part of any Proceeding initiated or brought voluntarily by the Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board has authorized or consented to the initiation of the Proceeding or such part of any Proceeding or (ii) the Proceeding was commenced following a Change in Control; provided, however, that nothing in this Section 2.4(a) shall limit the right of the Indemnitee to be indemnified under Section 7.4; or (b) any Proceeding with respect to which final judgment is rendered against Indemnitee for (i) conduct determined to be knowingly fraudulent or deliberately dishonest or to constitute willful misconduct, (ii) payment or an accounting of profits made from the purchase and sale (sale, or sale and purchase) , by the Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; law or (iiiii) any reimbursement of of, or payment to, the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-Xxxxx Act”)) or any formal policy of the Company adopted by the Board, or the payment to the Company of profits arising from the purchase and or sale by the Indemnitee of securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx Act); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. 9.1 Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification, advance expenses in connection with any claim made against Indemnitee: (a) for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement provision or otherwise; (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e)14.5 and 14.6 hereof, prior to a Change of in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law;. Indemnitee shall seek payments or advances from the Company only to the extent that such payments or advances are unavailable from any insurance policy of the Company covering Indemnitee. (cd) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (de) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default neglect or dishonesty in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (ef) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification. 9.2 The Company shall not be liable under this Agreement to make any payment of amounts otherwise indemnifiable (or for which advancement is provided) hereunder if and to the extent that Indemnitee has actually received such payment under any insurance policy or other indemnity provision.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; (ib) for any transaction from which Indemnitee derived an improper personal benefit; (c) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bd) except as otherwise provided if a court having jurisdiction in Sections 6.01(ethe matter shall finally determine that such indemnification is not lawful under any applicable statute or public policy (and, in this respect, both the Company and Indemnitee 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 appropriate courts for adjudication), prior to a Change of Control, ; or (e) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including or any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or and its directors, officers, employees or other indemnitees, unless (i) the Board authorized Company is expressly required by law to make the indemnification, (ii) the Proceeding was authorized by the Board of Directors of the Company, (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , or (civ) Indemnitee initiated the Proceeding pursuant to the extent that Section 11 of this Agreement and Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) successful in connection with a judicial action by whole or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default part in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationProceeding.

Exclusions. Notwithstanding any provision of anything in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company Indemnitee shall not be obligated entitled to indemnification under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) for to the extent that payment is actually made to the Indemnitee under a valid, enforceable and collectible insurance policy; (b) to the extent that the Indemnitee is indemnified and actually paid other than pursuant to this Agreement; (c) in connection with any Proceeding initiated by the Indemnitee against the Company, any director or officer of the Company or any other party, and not by way of defense, unless (i) an accounting the Company has joined in or the Reviewing Party (as hereinafter defined) has consented to the initiation of such Proceeding; or (ii) the Proceeding is one to enforce indemnification rights under this Agreement or any applicable law; (d) for a disgorgement of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of any applicable U.S. state statutory law or common law; (e) brought about by the dishonesty or fraud of the Indemnitee seeking payment hereunder; provided, regardless however, that the Indemnitee shall be protected under this Agreement as to any claims upon which suit may be brought against him by reason of whether the securities are subject any alleged dishonesty on his part, unless a judgment or other final adjudication thereof adverse to the requirements Indemnitee establishes that he committed (i) acts of such provisions; or active and deliberate dishonesty, (ii) any 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 Companywith actual dishonest purpose and intent, as required in each case under the Exchange Act and (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment iii) which acts were material to the Company cause of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)action so adjudicated; (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (ef) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationindemnity; (g) arising out of the Indemnitee’s personal tax matter; or (h) arising out of the Indemnitee’s breach of an employment agreement with the Company (if any) or any other agreement with the Company or any of its subsidiaries.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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 (In the event that such actual payment is made under any insurance policy or indemnity provision after the Company has made an indemnity under this Agreement, Indemnitee shall promptly reimburse the Company for such indemnity in the amount of such payment.); or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Securities Exchange Act of 1934 (the “Exchange Act”) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) the Proceeding is for enforcement of this Agreement (to the extent that the Indemnitee prevails), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except (i) with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision and (ii) with respect to any Expenses, amounts paid in settlement by Indemnitee, or the amount of judgments or fines against Indemnitee by reason of any Proceeding involving Indemnitee that are advanced to Indemnitee by the Company’s manager, Westech Investment Advisors, Inc. or any successor-in-interest or affiliate of manager, and, in any such event, the Company shall promptly reimburse manager for all such advances, and manager may initiate an action under Section 11 hereof against the Company to obtain such reimbursement; or (b) during or attributable to the period of time that the Company is registered as a reporting company under Section 12(g) of the Exchange Act, for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act Act; or (c) during or similar provisions attributable to the period of state statutory law or common law, regardless of whether time that the securities are Company is subject to regulation as a business development company under the requirements Investment Company Act of such provisions; or (ii) any 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 Company1940, 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 (the “Xxxxxxxx-Xxxxx Act”)amended, or the payment for liability to the Company or to the Company’s stockholders to which Indemnitee becomes subject by reason of profits arising from willful misfeasance, bad faith, gross negligence or reckless disregard of Indemnitee’s duties in the purchase and sale conduct of his office to the extent indemnity for any such liability is proscribed by Indemnitee Section 17(h) of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx said Act);; or (bd) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee prior to a Change of Control against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c. The provisions of this Section 6(d) shall not apply to any action brought by Indemnitee against the extent that Indemnitee is indemnified and actually received such payment other than Company pursuant to Section 11 of this Agreement to enforce this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the The Company shall not be obligated under this Agreement liable to make any indemnity in connection with any claim made against Indemniteepayment hereunder: (a7.1. If it shall be finally adjudicated that such payment is prohibited by law; 7.2. On account of any Proceeding brought under Section 16(b) of the Securities Exchange Act of 1934, as such law is amended from time to time, or under any similar law that replaces Section 16(b), in which judgment is rendered against Indemnitee for (i) an accounting of for profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided 7.3. For Liability or Expenses in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated brought by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (iI) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or is brought as a Proceeding for indemnity under this Agreement, (ii) Indemnitee is successful in whole or in part in a Proceeding or (iii) the indemnification is included in a settlement of the Proceeding or is awarded by a court; 7.4. To the extent payment is actually made to Indemnitee under a valid, enforceable and collectible insurance policy, whether provided by the Company provides or by Indemnitee (the indemnification"Insurance Policy"), by or out of a fund created by the Company and under the control of a trustee or otherwise (the "Fund") or from other sources provided by the Company ("Other Sources"); or 7.5. For amounts paid in its sole discretionsettlement of a claim effected without the Company's prior written consent, pursuant which consent shall not be unreasonably withheld. If Indemnitee shall become obligated or required to pay any amount that the Company would be obligated to pay hereunder except for the exclusion in Section 7.4, the Company shall advance such amount to Indemnitee if payment is not reasonably expected to be made under the Insurance Policy, by the Fund or from Other Sources prior to the powers vested in the Company under applicable law; (c) to the extent time that Indemnitee is indemnified and actually received must make such payment other than pursuant payment, provided, however, that Indemnitee shall immediately pay over to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claimfrom the funds Indemnitee later receives under the Insurance Policy, issue from the Fund or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty from Other Sources, an amount equal to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationamount advanced.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; (ib) for any transaction from which Indemnitee derived an Improper Personal Benefit; (c) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act Act, or similar provisions of state statutory law or common law; (d) if a court having jurisdiction in the matter shall finally determine that such indemnification is not lawful under any applicable statute or public policy (and, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of in this respect, both the Company by and Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from have been advised that the sale of securities of the Company, as required in each case Securities and Exchange Commission believes that indemnification for liabilities arising under the Exchange Act (including any such reimbursements federal securities laws is against public policy and is, therefore, unenforceable and that arise from an accounting restatement of the Company pursuant claims for indemnification should be submitted to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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 Actappropriate courts for adjudication); (be) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including or any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or and its directors, officers, employees or other indemnitees, unless (i) the Board authorized Company is expressly required by law to make the indemnification, (ii) the Proceeding was authorized by the Board of Directors of the Company, (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law;, or (iv) Indemnitee initiated the Proceeding pursuant to Section 11 of this Agreement and Indemnitee is successful in whole or in part in the Proceeding; and (cf) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right on account of any Proceeding for any reimbursement of the Company, in respect Company by the Indemnitee of any claim, issue compensation as required under any incentive compensation recoupment or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court “clawback” policy of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only in effect from time to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationtime.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not [i] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or, (ii) affect the rights of Indemnitee or the Fund Indemnitors (as defined below) as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)Act of 2002; (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of anything in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemniteeto: (a) indemnify or advance funds to Indemnitee for Expenses or Losses with respect to proceedings initiated by Indemnitee, including any proceedings against the Company or its directors, officers, employees or other indemnitees and not by way of defense, except: (i) an accounting proceedings referenced in Section 5 above (unless a court of competent jurisdiction determines that each of the material assertions made by Indemnitee in such proceeding was not made in good faith or was frivolous); or (ii) where the Company has joined in or the Board has consented to the initiation of such proceedings; (b) indemnify Indemnitee if a final decision by a court of competent jurisdiction determines that such indemnification is prohibited by applicable law; (c) indemnify Indemnitee for the disgorgement of profits made arising from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning in violation of Section 16(b) of the Exchange Act Act, or any similar provisions of state statutory law successor statute; (d) indemnify or common law, regardless of whether the securities are subject advance funds to Indemnitee for Indemnitee’s reimbursement to the requirements of such provisions; or (ii) any reimbursement of the Company by Indemnitee of any bonus or other incentive-based or equity-based compensation previously received by Indemnitee or payment 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 under Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (in connection with an accounting restatement of the “Xxxxxxxx-Xxxxx Act”), Company or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which indemnify Indemnitee if the Company Claim is prohibited by applicable law from paying as indemnificationan Excluded Claim.

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) except as provided in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, managers, managing members, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseSxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgmentpayment to Indemnitee that is determined to be unlawful by a final judgment or other adjudication of a court or arbitration, fine arbitral or penalty administrative body of competent jurisdiction as to which there is no further right or option of appeal or the Company is prohibited time within which an appeal must be filed has expired without such filing and under the procedures and subject to the presumptions of this Agreement; or (f) in connection with any Proceeding initiated by applicable law from paying as indemnificationIndemnitee to enforce its rights under this Agreement if a court or arbitration, arbitral or administrative body of competent jurisdiction determines by final judicial decision that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or was frivolous. The exclusions in this Article 8 shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) Except as provided for in Section 19 hereof, for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid; provided, however, that payment made to Indemnitee pursuant to an insurance policy purchased and maintained by Indemnitee at his or her own expense of any amounts otherwise indemnifiable or obligated to be made pursuant to this Agreement shall not reduce the Company’s obligations to Indemnitee pursuant to this Agreement. (ib) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to the requirements of such provisions; or any settlement arrangements); (iic) for any 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (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 XxxxxxxxSxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingd) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) otherwise authorized in Section 12 (a) or 12(d) hereof or (iv) otherwise required by applicable law; provided, for the avoidance of doubt, Indemnitee shall not be deemed for purposes of this Section 7(d) to the extent that have initiated any Proceeding (or any part of a Proceeding) by reason of (i) having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; or (dii) having made any counterclaim (whether permissive or mandatory) in connection with a judicial action any claim not initiated by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properIxxxxxxxxx; or (e) for any judgment, fine or penalty which the Company is if prohibited by applicable law from paying as indemnificationdetermined by a court of competent jurisdiction in a final adjudication not subject to further appeal.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (ior for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not apply to any personal or umbrella liability insurance maintained by Indemnitee; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act Act, or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActAct of 2002 (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company 3.1 A Seller shall not be obligated liable in respect of a claim under this Agreement paragraph 2 and/or for a Tax Warranty Claim to make any indemnity in connection with any claim made against Indemniteethe extent that: (a) for (i) an accounting of profits made from allowance, provision or reserve was included in the purchase and sale (or sale and purchase) by Indemnitee of securities Locked Box Accounts in respect of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject matter giving rise to the requirements of such provisions; or (ii) any 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 (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)relevant liability; (b) except the relevant liability arises in the ordinary course of a Group Company’s business as otherwise provided in Sections 6.01(e), prior to a Change result of Control, or in connection with any Proceeding (or any part an Event occurring between the Locked Box Date and the date of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable lawCompletion; (c) to the extent that Indemnitee relevant liability is indemnified and actually received such payment other than pursuant to this Agreementwithin the scope of Clause 31; (d) in connection with a judicial action by the relevant liability constitutes Leakage or Permitted Leakage; (e) payment or discharge of the relevant liability has been made prior to Locked Box Accounts and such payment or discharge has been reflected in the right Locked Box Accounts; (f) the matter giving rise to the relevant liability has been discharged or made good without loss or cost to any member of the CompanyPurchaser’s Group; (g) the matter giving rise to the relevant liability would not have arisen but for any change (announced and effective) after the date of this Agreement in: (i) a law, rule or regulation in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court Tax; (ii) rates of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properTaxation; or (eiii) published interpretation of the law or published administrative practice of a Taxation Authority; (h) the relevant liability has arisen wholly or partially from an event before or after Completion at the written request or direction of, or with the written acquiescence or consent of the Purchaser or any member of the Purchaser’s Group (or any authorised agent or adviser of any of the aforementioned entities); (i) any Relief (other than a Purchaser’s Relief) is available to the relevant Group Company to be utilised to reduce the relevant liability or reduce the income, profits or gains giving rise to the relevant liability; (j) the relevant liability arose as a result of a transaction, act or omission entered into, carried out or failed to be carried out by or on behalf of a Group Company, any member of the Purchaser’s Group or the Purchaser after Completion, other than any such transaction, act or omission required by law; (k) the relevant liability would not have arisen but for a cessation of trade by, or a change in the nature or conduct of the trade of, a Group Company on or after Completion; (l) the relevant liability arises or is increased in connection with any judgmentfailure by the Purchaser or any member of the Purchaser’s Group to comply with, fine or penalty which a failure to procure the compliance of a Group Company with, any of their respective obligations under this Schedule or under the Agreement; (m) the relevant liability results from or is prohibited increased or extended by applicable law from paying any change on or after Completion in: (i) the accounting reference date of a Group Company; or (ii) any change in the accounting policies or Tax reporting practices of a Group Company; and (n) the relevant liability would not have arisen but for: (i) the making of a claim, election, surrender or disclaimer, the giving of a notice or consent, or the doing of any other thing under the provisions of any enactment or regulation relating to Tax, in each case after Completion by the Purchaser, any member of the Purchaser’s Group or any Group Company; (ii) the failure or omission on the part of any Group Company to make any such valid claim, election, surrender or disclaimer, or to give any such notice or consent or to do any other such thing, as indemnificationa Seller may require; (o) the relevant liability arises in respect of income, profits or gains earned, accrued or received on or before Completion but apportioned to the period after Completion for the purposes of preparing the Locked Box Accounts; (p) the relevant liability arises by virtue of the average rate of Tax of any Group Company increasing as a result of becoming a member of the Purchaser’s Group.

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) [except as provided in Section 15.4,] for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseXxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgment, fine payment to Indemnitee that is finally determined to be unlawful under the procedures and subject to the presumptions of this Agreement. The exclusion in Section 8.1(c) shall not apply to counterclaims or penalty which the Company is prohibited affirmative defenses asserted by applicable law from paying as indemnificationIndemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; (ib) for any transaction from which Indemnitee derived an improper personal benefit; (c) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bd) except as otherwise provided if a court having jurisdiction in Sections 6.01(ethe matter shall finally determine that such indemnification is not lawful under any applicable statute or public policy (and, in this respect, both the Company and Indemnitee have been advised that the Securities and Exchange Commission believes that indemnification for liabilities arising under the federal securities laws 3 is against public policy and is, therefore, unenforceable and that claims for indemnification should be submitted to appropriate courts for adjudication), prior to a Change of Control, ; or (e) in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including or any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or and its directors, officers, employees or other indemnitees, unless (i) the Board authorized Company is expressly required by law to make the indemnification, (ii) the Proceeding was authorized by the Board of Directors of the Company, (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , or (civ) Indemnitee initiated the Proceeding pursuant to the extent that Section 11 of this Agreement and Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) successful in connection with a judicial action by whole or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default part in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationProceeding.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity payment, or to advance any expenses, in connection with any claim made against Indemnitee: (a) for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under any insurance policy or other indemnity provision; (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; provided, regardless of whether the securities are subject to the requirements of such provisions; or (ii) however, that notwithstanding any 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 limitation on the Company’s obligation to provide indemnification set forth in this Section 8(b) or elsewhere, as required in each case under the Exchange Act (including Indemnitee shall be entitled to receive advancement of Expenses hereunder with respect to any such reimbursements 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 arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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);has violated said statute; or (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior such indemnification is expressly required to its initiation or be made by applicable law, (ii) the Company provides Proceeding was authorized by the indemnificationBoard, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law; the DGCL, or (civ) such indemnification is required to the extent that Indemnitee is indemnified and actually received such payment other than be made pursuant to Section 13 of this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any other provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) 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; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(c) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except (i) with respect to any excess beyond the amount paid and (ii) for payments made to or on behalf of Indemnitee by a Third Party Indemnitor or pursuant to any Third Party Insurance Policies pursuant to Section 15; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to the requirements of such provisions; or any settlement arrangements); (iic) for any 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 to the extent required in each case under the Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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 306 306(a) of the Xxxxxxxx-Xxxxx Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingd) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; otherwise authorized in Section 12(d) or (div) in connection with a judicial action otherwise required by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properapplicable law; or (e) for any judgment, fine or penalty which the Company is if prohibited by applicable law from paying as indemnificationdetermined in a final adjudication by a court of competent jurisdiction and not subject to further appeal.

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) except [as provided in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries,] except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, managers, managing members, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseSxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgmentpayment to Indemnitee that is determined to be unlawful by a final judgment or other adjudication of a court or arbitration, fine arbitral or penalty administrative body of competent jurisdiction as to which there is no further right or option of appeal or the Company is prohibited time within which an appeal must be filed has expired without such filing and under the procedures and subject to the presumptions of this Agreement; or (f) in connection with any Proceeding initiated by applicable law from paying as indemnificationIndemnitee to enforce its rights under this Agreement if a court or arbitration, arbitral or administrative body of competent jurisdiction determines by final judicial decision that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or was frivolous. The exclusions in this Article 8 shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall is not be obligated under this Agreement to make any indemnity indemnification payment to Indemnitee in connection with any claim made against IndemniteeProceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 16(b) of this Agreement and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including, but not limited to, any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; provided that this exclusion (a) shall not apply to any Expenses incurred in the defense of any claim made against Indemnitee; or (b) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. (a) Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, including for Expenses, in connection with any claim made Proceeding against Indemnitee: (ai) for which payment actually has been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under such insurance policy or other indemnity provision; or (iii) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee or any member of the Indemnitee's immediate family of securities of the Company within the meaning of Section 16(b) of the Exchange Act Act, as amended, or similar provisions of state blue sky law, state statutory law or common law, regardless of whether the securities are subject ; or (iii) based upon or attributable to the requirements of such provisions; Indemnitee or (ii) any reimbursement member of the Company Indemnitee's immediate family gaining in fact any personal profit or advantage to which the Indemnitee was not legally entitled; provided that the Indemnitee shall be protected under this Agreement as to any claims upon which suit may be brought against Indemnitee by Indemnitee reason of any bonus alleged personal profit or other incentiveadvantage to which the Indemnitee was not legally entitled, unless a final and non-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 (the “Xxxxxxxx-Xxxxx Act”), or the payment appealable adjudication thereof adverse to the Company Indemnitee by a court of profits arising from competent jurisdiction shall establish that Indemnitee committed act(s) of personal profit or advantage to which the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act);was not legally entitled; or (biv) except as otherwise provided in Sections 6.01(e), prior to a Change of in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company (other than any Proceeding referred to in Sections 13(d) or (e) below or any other Proceeding commenced to recover any Expenses referred to in Section 7(c) above) or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (ev) if the funds at issue were paid pursuant to a settlement approved by a court and indemnification would be inconsistent with any condition with respect to indemnification expressly imposed by the court in approving the settlement; or (vi) based upon or attributable to the fraud, willful misconduct or dishonesty of the Indemnitee seeking payment hereunder; provided that the Indemnitee shall be protected under this Agreement as to any claims upon which suit may be brought against Indemnitee by reason of any alleged fraud, willful misconduct or dishonesty on Indemnitee's part, unless a final and non-appealable adjudication thereof adverse to the Indemnitee by a court of competent jurisdiction shall establish that Indemnitee committed fraud, willful misconduct or act(s) of active and deliberate dishonesty, with actual dishonest purpose and intent, which act(s) were material to the cause of action so adjudicated; or (vii) for bodily injury, sickness, disease or death of any judgmentperson, fine or penalty damage to or destruction of any tangible property, including loss of use thereof, not in connection with performance of employment; or (viii) for which indemnification under this Agreement is determined by a final and non-appealable adjudication of a court of competent jurisdiction to be unlawful and violative of public policy. (b) Notwithstanding anything to the contrary set forth in or relied upon by the Indemnitee in connection with this Agreement, (i) for the purposes of this Agreement, the term "Company" and "Enterprise" shall specifically exclude Loral Space & Communications Ltd., a Bermuda corporation, or any direct or indirect subsidiary thereof that at the time was not or that is not a direct or indirect subsidiary of the Company (collectively, "Old Loral"), and the Company shall not have any obligations pursuant to this Agreement by virtue of any assertion by any person, entity or governmental authority or any determination of a court of competent jurisdiction, that it is prohibited by applicable law from paying as indemnification.a successor to Old Loral or any other entity;

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) except as provided in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseXxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgment, fine payment to Indemnitee that is determined to be unlawful by a final judgment other adjudication of a court or penalty arbitration or administrative body of competent jurisdiction as to which there is no further right or option of appeal or the Company is prohibited time within which an appeal must be filed has expired without such filing and under the procedures and subject to the presumptions of this Agreement; or (f) in connection with any Proceeding initiated by applicable law from paying as indemnificationIndemnitee to enforce its rights under this Agreement if a court of competent jurisdiction determines by final judicial decision that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or was frivolous. The exclusion in Section 8.1(c) shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of anything in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company Indemnitee shall not be obligated entitled to indemnification under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that payment is actually made to the Indemnitee under a valid, enforceable and collectible insurance policy; (ii) to the extent that the Indemnitee is indemnified and actually received such payment paid other than pursuant to this Agreement; (diii) subject to Section 3(b), in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law competent jurisdiction, in a decision from which there is no further right of appeal, to be liable for fraud gross negligence or knowing or willful default misconduct in the performance of his or her duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification indemnity for such Expenses as such court shall deem proper; or; (eiv) in connection with any Proceeding initiated by the Indemnitee against the Company, any director or officer of the Company or any other party, and not by way of defense, unless (A) the Company has joined in or the Board of Directors has consented to the initiation of such Proceeding; or (B) the Proceeding is one to enforce indemnification rights under this Agreement or any applicable law; (v) brought about by the dishonesty or fraud of the Indemnitee seeking payment hereunder; provided, however, that the Company shall indemnify the Indemnitee under this Agreement as to any claims upon which suit may be brought against him or her by reason of any alleged dishonesty on his or her part, unless a judgment or other final adjudication thereof adverse to the Indemnitee establishes that he or she committed (A) acts of active and deliberate dishonesty, (B) with actual dishonest purpose and intent, and (C) which acts were material to the cause of action so adjudicated; (vi) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationindemnity; (vii) arising out of the Indemnitee’s breach of an employment agreement with the Company (if any) or any other agreement with the Company or any of its subsidiaries, or (viii) arising out of the Indemnitee’s personal income tax payable on any salaries, bonuses, director’s fees, including fees for attending meetings, or gain on disposition of shares, options or restricted shares of the Company.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisionsprovision; or (ii) any 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 (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 (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding Regardless of the scope of indemnification available to Indemnitees from time to time under any provision Applicable Document, no indemnification, reimbursement, or payment shall be required of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:Corporation hereunder for – (a) any claim or any part thereof for (i) an accounting which Indemnitee is determined by a court of profits made competent jurisdiction, from which no appeal is or can be taken, by clear and convincing evidence, to have acted with deliberate intent to cause injury to the purchase and sale (Corporation or sale and purchase) by Indemnitee of securities with reckless disregard for the best interests of the Company within the meaning Corporation, (b) any claim or any part thereof arising out of Section acts or omissions for which applicable law prohibits elimination of liability, (c) any claim or any part thereof arising under section 16(b) of the Securities Exchange Act of 1934 for which Indemnitee is obligated to pay any penalty, fine, settlement, or similar provisions judgment, (d) any obligation of state statutory law Indemnitee based upon or common lawattributable to the Indemnitee gaining in fact any improper personal benefit, gain, profit, or advantage, or (e) any proceeding initiated by Indemnitee without the consent or authorization of the Corporation’s board of directors, provided that this exclusion shall not apply to any claims brought by Indemnitee (x) to enforce the Indemnitee’s rights under this Agreement or (y) in any Proceeding initiated by another person or entity, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated claims were brought by Indemnitee against a person or entity who was otherwise a party to such proceeding. Nothing in this section 9 shall eliminate or diminish the Company or its directorsCorporation’s obligations to advance that portion of Indemnitee’s Expenses representing attorneys’ fees and other costs incurred in defending any proceeding under section 3 of this Agreement. Furthermore, officersdespite anything to the contrary in this Agreement, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the nothing in this Agreement requires indemnification, in its sole discretionreimbursement, pursuant or payment by the Corporation, and the Indemnitee shall not be entitled to the powers vested in the Company demand indemnification, reimbursement, or payment under applicable law; (c) this Agreement, if and to the extent that Indemnitee is indemnified and actually received such indemnification, reimbursement, or payment other than pursuant to this Agreement; (dconstitutes a “prohibited indemnification payment” within the meaning of Federal Deposit Insurance Corporation Rule 359.1(l)(1) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification[12 CFR 359.1(l)(1)].

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect 1.1 In addition to any such claim, other limitations set out in this agreement the Company Seller shall not be obligated liable in respect of a Claim (i) for indemnification under this Agreement clause 9.2 to make any indemnity the extent that the matter or circumstance giving rise to that Claim was taken into account in connection with any claim made against Indemniteethe Accounts or the Completion Statement by way of a provision; or (ii) to the extent that the matter or circumstance giving rise to a Claim in respect of the Warranties or under clause 9.2(a) was fully and fairly disclosed in the Disclosure Letter. 1.2 The Seller shall not be liable in respect of a Claim to the extent that the relevant liability would not have arisen but for: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 a change 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 (the “Xxxxxxxx-Xxxxx Act”)legislation, or the payment withdrawal of any extra-statutory concession previously made by any Taxation Authority, after the date of this agreement (whether or not the change or withdrawal purports to the Company of profits arising from the purchase and sale by Indemnitee of securities be effective retrospectively in violation of Section 306 of the Xxxxxxxx-Xxxxx Actwhole or in part);; or (b) except as otherwise provided a change after Completion in Sections 6.01(eGAAP and the accounting policies adopted by the Company. 1.3 The Seller shall not be liable in respect of a Claim: (a) with respect to losses for taxes on the basis of any assessment which involves merely a delay in receiving a taxable income or in incurring deductible expenses (“redressement ayant la nature d’un simple décalage dans le temps d’un revenu ou d’une charge”), prior it being agreed that Seller will pay to a Change of Controlthe Purchaser all fines, in connection with any Proceeding (penalties or any part of any Proceeding) initiated interest incurred by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) as a result of the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law;above delay; or (cb) to the extent that Indemnitee is indemnified and actually received losses (a) shall be reduced by the value of any net tax benefit or tax savings realized by the Purchaser or the Company as a result of the occurrence of the relevant losses suffered by the Company as the case may be, including, for the avoidance of doubt, any tax which may be offset against other tax liability or retrievable taxes, or (b) shall be reduced by any payment obtained by the Purchaser or the Company in application of insurance policies or any other third party; or (c) with respect to any tax adjustment relating to a retrievable tax, except for all fines, penalties or interest incurred by the Company as a result of such payment other than pursuant to this Agreement;tax adjustment; or (d) in connection with a judicial action by or respect to the value of the fixed assets as recorded in the right of Accounts or the Company, in Completion Statement; (e) with respect to the unavailability of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem propertax loss carry forwards; or (ef) for with respect to any judgmentretrievable or deductible taxes. 1.4 In order to avoid any double indemnification, fine or penalty the same Loss occurring as a result of breach of more than one representation and warranty shall only be indemnified once. A liability which has been taken into account in the Company is prohibited Completion Statement shall not be claimed by applicable law from paying as indemnificationthe Purchaser again pursuant to other provisions of this agreement.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not [i] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActAct of 2002, as amended (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee is indemnified Company under this Agreement or under any directors’ and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action officers’ liability insurance policies maintained by or the Company in the right of the Company, suit for which indemnification or advancement is being sought as described in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properSection 12; or (e) for to provide any judgment, fine indemnification or penalty which the Company advancement of expenses that is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of anything in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company Indemnitee shall not be obligated entitled to indemnification under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 extent that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), or the payment is actually made to the Company of profits arising from the purchase Indemnitee under a valid, enforceable and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)collectible insurance policy; (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud gross negligence or willful default misconduct in the performance of his duty to the Company Company, unless and only to the extent that any the court in which such action was brought shall determine determines upon application thatapplication, despite that notwithstanding the adjudication of liability but such liability, in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification indemnity for such Expenses as such court shall deem proper; (c) in connection with any Proceeding initiated by the Indemnitee against the Company or any director or officer of the Company, and not by way of defense, unless (i) the Company has joined in, or the Board has consented to, the initiation of such Proceeding; oror (ii) the Proceeding is one to enforce indemnification rights under this Agreement or any applicable law; (d) for a disgorgement of profits made from the purchase and sale by the Indemnitee of securities pursuant to Section 16(b) of the Exchange Act or similar provisions of any applicable U.S. state statutory law or common law; (e) brought about by the dishonesty or fraud of the Indemnitee seeking payment hereunder; provided, however, that the Indemnitee shall be protected under this Agreement as to any claims upon which a suit may be brought against him by reason of any alleged dishonesty on his part, unless a judgment or other final adjudication thereof adverse to the Indemnitee establishes that he committed acts of active and deliberate dishonesty with actual dishonest purpose and intent and such acts were material to the cause of action so adjudicated; (f) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationindemnity; or (g) arising out of the Indemnitee’s breach of an employment agreement with the Company (if any) or any other agreement with the Company or any of its subsidiaries.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall is not be obligated under this Agreement to make any indemnity indemnification payment to Indemnitee in connection with any claim made against IndemniteeProceeding: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 16(b) of the Exchange Act and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingc) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any other provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company Corporation shall not be obligated under this Agreement to make any indemnity indemnification or to hold harmless or exonerate Indemnitee in connection with any claim made against Indemnitee: (a) for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision or agreement (iother than this Agreement), either by the Corporation or otherwise, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity provision or otherwise; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Corporation within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e)Section 4(b) hereof, prior to a Change of in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, and not brought by way of defense, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company Corporation or its directors, officers, employees or other indemnitees, unless (i) the Board of Directors of the Corporation authorized or consented to the Proceeding (or any part of any Proceeding) prior to its initiation or initiation; (ii) such payment arises in connection with any mandatory counterclaim or cross-claim that Indemnitee asserts against the Company Corporation or its directors, officers, employees or other indemnitees or any affirmative defense Indemnitee raises or (iii) the Corporation otherwise provides the indemnification, such indemnification or holds harmless or exonerates Indemnitee in its sole discretion, pursuant to the powers vested in the Company Corporation under applicable law; (cd) for the payment of amounts required to be reimbursed to the extent that Indemnitee is indemnified and actually received such payment other than Corporation pursuant to this Agreement; (d) in connection with a judicial action by or in the right Section 304 of the CompanyXxxxxxxx-Xxxxx Act of 2002, in respect of any claimas amended, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 10D of the caseExchange Act, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properor any successor statute thereto; or under any corporate “clawback” policy; or (e) for any judgment, fine or penalty which payment to Indemnitee that is finally determined to be unlawful under the Company is prohibited by applicable law from paying as indemnificationprocedures and subject to the presumptions of this Agreement.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity payment, or to advance any expenses, in connection with any claim made against Indemnitee: (a) for which payment has actually been received by or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise [(iother than with respect to any insurance policy or other indemnity provision which is provided to Indemnitee at the cost or expense of any Fund Indemnitor)]1, except with respect to any excess beyond the amount actually received under any such statute, insurance policy, indemnity provision, vote or otherwise [or as provided in Section 15(c) below]1; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law; provided, regardless of whether the securities are subject to the requirements of such provisions; or (ii) however, that notwithstanding any 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 limitation on the Company’s obligation to provide indemnification set forth in this Section 9(b) or elsewhere, as required in each case under the Exchange Act (including Indemnitee shall be entitled to receive advancement of Expenses hereunder with respect to any such reimbursements 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 arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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);has violated said statute; or (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior such indemnification is expressly required to its initiation or be made by applicable law, (ii) the Company provides Proceeding was authorized by the indemnificationBoard, (iii) such indemnification is provided by the Company, in its sole discretion, pursuant to the powers vested in the Company under applicable law; the DGCL, or (civ) such indemnification is required to the extent that Indemnitee is indemnified and actually received such payment other than be made pursuant to Section 14 of this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; or (b) for any Proceedings with respect to which final judgment is rendered against Indemnitee for payment of (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx"Sxxxxxxx-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 XxxxxxxxSxxxxxxx-Xxxxx Act);, or (bc) any Proceeding involving the enforcement of non-compete and/or non-disclosure agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; or (d) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) 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 Indemnitor set forth in Section 15(e) below; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(b) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity or provide any benefit to Indemnitee under this Agreement or otherwise, in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid[, subject to any subrogation rights set forth in Section 15]1; (ib) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to the requirements of such provisions; or any settlement arrangements); (iic) for any 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 Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceedingd) initiated by Indemnitee and not by way of defense, including against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) otherwise authorized in Section 12(d), (iv) brought to the extent that Indemnitee discharge Indemnitee’s fiduciary 1 Note to Draft: Delete if Section 15 is indemnified and actually received such payment other than pursuant deleted due to this Agreement; there being no Secondary Indemnitor. responsibilities, whether under ERISA or otherwise, or (dv) in connection with a judicial action otherwise required by applicable law or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper’s bylaws; or (e) for any judgment, fine or penalty which the Company is if prohibited by applicable law from paying as indemnificationdetermined in a final adjudication not subject to further appeal.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to make any indemnity for, or advancement of, amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise, except with respect to any excess beyond the amount paid under any such insurance policy, contract, agreement or other indemnity provision; (ib) to make any indemnity for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Parent or any Enterprise within the meaning of Section 16(b) of the Exchange Act or similar provisions of state applicable statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided to make any indemnity or advancement hereunder in Sections 6.01(e), prior connection with any Proceeding made on account of Xxxxxxxxxx’s conduct which is determined by final judgment or other final adjudication to have constituted a breach of Indemnitee’s duty of loyalty or other fiduciary duty to a Change Mural Company, an Enterprise, or their respective stockholders or an act or omission not in good faith or which involved intentional misconduct or a knowing violation of Control, the law; (d) to make any indemnity or advancement in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the a Mural Company, an Enterprise or any director, officer, employee or other indemnitee of a Mural Company or its directors, officers, employees or other indemniteesan Enterprise, unless (i) the Board or the Parent Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; Proceeding (d) in connection with a judicial action by or in the right of the Company, in respect any part of any claim, issue Proceeding) is initiated after a Change of Control has occurred after the date of this Agreement or matter as (iv) such Proceeding (or any part of any Proceeding) is brought to which the Indemnitee shall have been adjudicated by final judgment in establish or enforce a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled right to indemnification for such Expenses as such court shall deem properunder this Agreement or any other law, statute or rule; or (e) for to make any judgment, fine indemnity or penalty which the Company advancement that is expressly prohibited by applicable law from paying as law. Indemnitee acknowledges and agrees that to the extent Indemnitee has rights to indemnification, advancement of expenses and/or insurance provided by or on behalf of an Enterprise, such Enterprise shall be the indemnitor of first resort (i.e., such Enterprise’s obligations to Indemnitee are primary and any obligation of the Company to advance expenses or to provide indemnification for the same expenses or liabilities incurred by Indemnitee are secondary).

Exclusions. Notwithstanding any provision 4.1 No claim shall be made under the Tax Warranties, and the covenant contained in paragraph 2 of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company Schedule 5 shall not be obligated under this Agreement cover any Liability for Taxation, to make any indemnity in connection with any claim made against Indemniteethe extent that: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements amount of such provisions; Liability for Taxation was provided for or (ii) any reimbursement otherwise taken into account in the calculation 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 Final Adjustment Amount pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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);Schedule 10; or (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (such Liability for Taxation was discharged on or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law;before Closing; or (c) to it arises or is increased as a result only of any change in the extent that Indemnitee is indemnified and actually received such payment law (other than pursuant a change targeted specifically at countering a tax avoidance scheme) announced and coming into force after Closing (whether relating to this Agreement;rates of Tax or otherwise) or any amendment to or the withdrawal of any extra-statutory concession previously published by a Taxation Authority (whether or not the change purports to be effective retrospectively in whole or in part); or (d) in connection with it would not have arisen but for a judicial action by or change after Closing in the right of the Company, in respect accounting policies and practices of any claim, issue or matter as Target Company (other than a change legally required and made in order to which the Indemnitee shall have been adjudicated by final judgment comply with applicable law in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properforce at Closing); or (e) the Purchaser is actually compensated for any judgmentsuch matter under any other provision of this Agreement; or (f) there is available to the relevant Target Company a Relief which is not a Purchaser’s Relief to set against or otherwise mitigate the Liability for Taxation; or (g) it would not have arisen but for a voluntary act, fine transaction or omission of the Target, the Purchaser, any member of the Purchaser’s Tax Group or their respective directors, employees, agents or successors in title after Closing (including, without limitation, any breach of the obligations under paragraph 9 of this Schedule); or (h) it arises by reason of a voluntary disclaimer, withdrawal of a claim, claim or election made or notice or consent given by any Target Company after Closing or by reason of the revocation by any Target Company after Closing of any claim for Relief made (whether provisionally or otherwise) by it prior to Closing where such claim for Relief was taken into account in, or in computing a provision for Taxation in the calculation of Final Adjustment Amount pursuant to Schedule 10; or (i) it would not have arisen but for or has been increased by a failure or omission by any Target Company to make any claim, election, surrender, withdrawal or disclaimer or give any notice or consent or do any other thing after Closing the making, giving or doing of which was taken into account or assumed in computing a provision for Taxation in the calculation of Final Adjustment Amount pursuant to Schedule 10 where the need for such claim, election, surrender, disclaimer, notice, consent or action has been notified in writing to the Purchaser by the Seller at least thirty (30) Business Days prior to the applicable time limit for the making, giving or doing of the same; or (j) it has been made good by insurers or otherwise compensated for without cost to the Purchaser or any Target Company; or (k) the liability comprises penalties, charges, surcharges, fines or interest which arise as a consequence of any failure by the Purchaser or any Target Company after Closing to comply with any of its respective obligations under this Schedule 5. 4.2 For the purposes of paragraph 4.1(g) of this Schedule 5, an act will not be regarded as voluntary if undertaken pursuant to a legally binding obligation entered into by any Target Company on or before Closing or carried out or effected by on any Target Company pursuant to any law, regulation, directive or published practice of any Tax Authority whether coming into force before, on or after Closing, or for the purpose of avoiding or mitigating a penalty which imposable by such legislation, or if carried out with the Company is prohibited by applicable law from paying as indemnificationwritten approval of, or at the written request of the Seller.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity or provide any benefit to Indemnitee under this Agreement or otherwise, in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy, indemnity provision, vote or otherwise, except with respect to any excess beyond the amount paid[, subject to any subrogation rights set forth in Section 15]1; (ib) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Securities Exchange Act of 1934, as amended, or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to the requirements of such provisions; or any settlement arrangements); (iic) for any 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 Securities Exchange Act of 1934, as amended (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceedingd) initiated by Indemnitee and not by way of defense, including against the Company or its directors, officers, employees employees, agents or other indemnitees, unless (i) the Board Company’s board of directors authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; , (ciii) otherwise authorized in Section 12(d), (iv) brought to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; discharge Indemnitee’s fiduciary responsibilities, whether under ERISA or otherwise, or (dv) in connection with a judicial action otherwise required by applicable law or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper’s bylaws; or (e) for any judgment, fine or penalty which the Company is if prohibited by applicable law from paying as indemnificationdetermined in a final adjudication not subject to further appeal.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the The Company shall not be obligated to indemnify Indemnitee for Expenses or Losses under this Agreement to make any indemnity in connection with any claim made against Indemnitee:either Section 2(a) or 2(b): (a) to the extent such indemnification would reduce or eliminate any payments to or on behalf of Indemnitee under any D&O Insurance covering Indemnitee; (b) to the extent of any Expenses or Losses for (i) an accounting which Director is indemnified pursuant to the certificate of profits made from the purchase and sale (incorporation or sale and purchase) by Indemnitee of securities bylaws of the Company within or any D&O Insurance carried by the meaning Company; (c) on account of Section 16(b) any claim against Indemnitee arising out of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 trading 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’s securities while possessing material non-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), public information or the payment to the Company of for profits arising from the purchase and sale by Indemnitee of securities in violation accordance with the provisions of Section 306 § 16(b) of the Xxxxxxxx-Xxxxx ActExchange Act or any similar provisions of any federal or state statutory law; (d) if a final judgment or other final adjudication by a court having jurisdiction in the matter shall determine that such indemnity is not lawful; (e) in respect of any Proceeding initiated by Indemnitee against the Company, any Subsidiary or any Director or Officer unless (1) the Company has joined in or consented to the initiation of such Proceeding; or (2) the Proceeding is for recovery of Expenses described in Section 1(m)(3) or Section 1(m)(4); (bf) except as otherwise provided for any amounts paid in Sections 6.01(e)settlement of any Proceeding without the Company’s prior written consent, prior to a Change of Control, which consent shall not be unreasonably withheld or delayed; (g) in connection with any Proceeding if it has been finally adjudicated 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: (1) did not act in good faith and in a manner believed by him to be in or any part not opposed to the best interests of the Company; and (2) in the case of any criminal Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior failed to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant have reasonable cause to the powers vested in the Company under applicable law;believe that his conduct was not unlawful; or (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (dh) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have Proceeding if it has been finally adjudicated by final judgment in a court of law to be competent jurisdiction that, in connection with the subject of the Proceeding out of which the claim for indemnification has arisen, Indemnitee is liable for fraud or willful default in the performance of his duty to the Company including, without limitation, a claim that Indemnitee received an improper personal benefit, unless and only to the extent that any court of law or another court in which such action Proceeding was brought shall determine upon application that, despite the adjudication of liability liability, but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification indemnity for such Expenses as or Losses which such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company Signify Parties shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; law or (ii) any 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 (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 (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (other than any cross claim or counterclaim asserted by the Indemnitee), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company Signify Parties or its their directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or initiation, (ii) the Company provides Signify Parties provide the indemnification, in its their sole discretion, pursuant to the powers vested in the Company Signify Parties under applicable law; law or (ciii) the Proceeding is a compulsory counterclaim brought by Indemnitee in response to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to a Proceeding otherwise indemnifiable under this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any other provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) 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; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(c) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless unless: (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) for any Expenses, judgments, liabilities, fines, penalties and amounts paid in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as settlement resulting from Indemnitee’s conduct which is finally adjudged to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud willful misconduct, knowingly fraudulent or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properdeliberately dishonest; or (e) for any judgment, fine or penalty which the Company if a final decision by a court of competent jurisdiction determines such indemnification is prohibited by applicable law from paying as indemnificationlaw.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided, however, that the foregoing shall not [i] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or (ii) affect the rights of Indemnitee or the Secondary Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActAct of 2002 (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(c) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or; (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationindemnity; or (f) arising out of Indemnitee’s breach of an employment agreement or any other agreement with the Company (if any) or, if applicable, any subsidiary or affiliate of the Company.

Exclusions. Notwithstanding (A) This Coverage Section does not apply to, and no coverage will be available under this Coverage Section for, Loss from any provision Claim: (1) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any fact, circumstance, situation, transaction, event or Wrongful Act that, before the Inception Date of this Agreement Policy stated in ITEM 2(a) of the Declarations, was the subject of any notice given under any employment practices liability or other similar management liability policy or coverage section of which this Coverage Section is a direct or indirect renewal or replacement; (2) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any prior and/or pending litigation or administrative, regulatory or arbitration proceeding, including any audit by the Office of Federal Contract Compliance Programs, against any Insured as of the applicable Pending or Prior Date stated in ITEM 3 of the Declarations, or the same or substantially the same fact, circumstance, situation, transaction, event or Wrongful Act underlying or alleged therein; (3) for any actual or alleged violation of the responsibilities, duties or obligations imposed under the Employee Retirement Income Security Act of 1974 (ERISA) (except section 510 thereof), the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Fair Labor Standards Act (FLSA) (except the Equal Pay Act), the Worker Adjustment and unless Indemnitee ultimately is successful on Retraining Notification Act (WARN), the merits with respect Occupational Safety and Health Act (OHSA), or any amendments thereto or regulations promulgated thereunder, or any similar provisions of any federal, state or local statute, ordinance, regulation or common law; provided, that this EXCLUSION (A)(3) shall not apply to any Employment Claim for Retaliation; (4) for any actual or alleged violation of the responsibilities, duties or obligations imposed under the National Labor Relations Act (NLRA), or any amendments thereto or regulations promulgated thereunder, or any similar provisions of any federal, state or local statute, ordinance, regulation or common law; (5) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any lockout, strike, picket line, hiring of replacement workers or other similar actions in connection with labor disputes or labor negotiations; (6) for bodily injury (other than mental anguish or emotional distress), sickness, disease or death of any person or damage to or destruction of any tangible property including loss of use thereof whether or not it is damaged or destroyed; (7) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged obligation of any Insured pursuant to any workers’ compensation, unemployment insurance, Social Security or disability benefits law, or any similar provisions of any federal, state, or local statute, ordinance, regulation or common law; provided, that this EXCLUSION (A)(7) shall not apply to any Employment Claim for Retaliation; (8) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the liability of others assumed by any Insured under any written or oral contract or agreement; provided, that this EXCLUSION (A)(8) shall not apply to the extent that an Insured would have been liable in the absence of such claimcontract or agreement; (9) made against a Subsidiary or listed Affiliate or any Insured Person of such Subsidiary or Affiliate for any Wrongful Act committed or allegedly committed during any time when such entity was not a Subsidiary or Affiliate; (10) for any actual or alleged breach of any Independent Contractor Services Agreement or Third Party Services Agreement; (11) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving: (a) any actual, alleged, or threatened exposure to, generation, storage, transportation, discharge, emission, release, seepage, dispersal, escape, treatment, removal, handling, processing or disposal of any Pollutants; or (b) any order, direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize any Pollutants; provided, that this EXCLUSION (A)(11) shall not apply to any Employment Claim for Retaliation; (12) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any Provider Selection; or (13) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged violation of the Interstate Commerce Act of 1887, the Company shall not be obligated Xxxxxxx Antitrust Act of 1890, the Xxxxxxx Act of 1914, the Xxxxxxxx-Xxxxxx Act of 1936, the Cellar-Xxxxxxxx Act of 1950, the Federal Trade Commission Act of 1914, or any other federal statute involving antitrust, monopoly, price fixing (including horizontal or other price fixing of wages, hours, salaries, compensation, benefits or any other terms and conditions of employment), price discrimination, predatory pricing or restraint of trade activities, or of any regulations promulgated under this Agreement to make any indemnity or in connection with any claim made against Indemniteeof the foregoing statutes, or of any similar provisions of any federal, state or local statute, ordinance, regulation or common law. (B) This Coverage Section does not apply to, and no coverage will be available under this Coverage Section for, that part of Loss, other than Defense Expenses: (a1) which constitutes Benefits due or to become due or the equivalent value of such Benefits; provided, that this EXCLUSION (B)(1) shall not apply to any Employment Claim for Wrongful Termination; (i2) an accounting of profits made from the purchase and sale (which constitutes costs associated with providing any accommodation for persons with disabilities or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act any other status which is protected under any applicable federal, state or similar provisions of state statutory law local statute, ordinance, regulation or common law, regardless of whether the securities are subject including but not limited to the requirements Americans With Disabilities Act, the Civil Rights Act of 1964, or any amendments thereto or regulations promulgated under any such provisionslaw; or (3) which constitutes costs of compliance with any order for, grant of or agreement to provide non-monetary relief. (iiC) This Coverage Section does not apply to, and no coverage will be available under this Coverage Section for, Loss, other than Defense Expenses, from any reimbursement of the Company by Indemnitee Claim for any actual or alleged breach 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 Companywritten employment contract; provided, as required in each case under the Exchange Act that this EXCLUSION (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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); (bC) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) shall not apply to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or an Insured would have been liable in the right absence of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationwritten employment contract.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company Corporation shall not be obligated under this Agreement to make any indemnity in connection with any claim made against indemnify or hold harmless Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement provision or otherwise; (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company Corporation within the meaning of Section 16(b) of the Exchange Act or any successor rule or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company Corporation or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company Corporation provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company Corporation under applicable law; law (cfor the avoidance of doubt, Indemnitee shall not be deemed, for purposes of this subsection, to have initiated or brought any claim by reason of (i) to the extent that having asserted any affirmative defenses in connection with a claim not initiated by Indemnitee is indemnified and actually received such payment other than pursuant to this Agreementor (ii) having made any counterclaim (whether permissive or mandatory) in connection with any claim not initiated by Indemnitee); (d) for any issue or matter (or any related Expense or Liability) as to which Indemnitee (i) did not act in connection with good faith and in a judicial manner he or she reasonably believed to be in (or not opposed to) the best interests of the Corporation, or (ii) in the case of a criminal proceeding, had reasonable cause to believe that his or her conduct was unlawful; (e) if the Corporation brings an action by or in the Delaware Court contesting the right of Indemnitee to receive indemnification or contribution hereunder and establishes that (i) Indemnitee intentionally misrepresented or failed to disclose a material fact in making the Companyrequest for indemnification or contribution or (ii) such indemnification or contribution is prohibited by law (such event, a “Disqualifying Event”); provided, however, that in respect any such action the Corporation shall have the burden of proving the occurrence of any claimsuch Disqualifying Event; provided, issue or matter as to which further, that the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default reduction in the performance obligation of his duty the Corporation to the Company unless and make any payment for expenses, indemnification or contribution under clause (ii) of this Section 8(e) shall only be to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee obligation is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properprohibited by law; or (ef) for any judgment, fine or penalty which if a final decision by a court having jurisdiction in the Company matter shall determine that such indemnification is prohibited by applicable law from paying as indemnificationnot lawful.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for which payment actually has been received by or on behalf of Indemnitee under any insurance policy or other indemnity provision, except with respect to any excess beyond the amount actually received under such insurance policy or other indemnity provision; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company or any subsidiary of the Company within the meaning of Section 16(b) of the Exchange Act Act, as amended, or similar provisions of state blue sky law, state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company (other than any Proceeding referred to in Sections 14(d) or (e) below or any other Proceeding commenced to recover any Expenses referred to in Section 7(c) above) or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with if the funds at issue were paid pursuant to a judicial action settlement approved by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law and indemnification would be inconsistent with any condition with respect to be liable for fraud or willful default in indemnification expressly imposed by the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite approving the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationsettlement.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (ior for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise[Include in Investor Director Agreement][; provided that the foregoing shall not affect the rights of Indemnitee or the Secondary Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or ; (iic) [Include in Officer Agreement][to indemnify for any reimbursement of of, or payment to, 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 or any formal policy of the Company adopted by the Board (the “Xxxxxxxx-Xxxxx Act”or a committee thereof), or the payment any other remuneration paid to the Company of profits arising from the purchase and sale Indemnitee if it shall be determined by Indemnitee of securities a final judgment or other final adjudication that such remuneration was in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)law;] (bd) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directorsofficer thereof or any third party, officers, employees or other indemnitees, unless unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee is indemnified Company under this Agreement or under any directors’ and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action officers’ liability insurance policies maintained by or the Company in the right of the Company, suit for which indemnification or advancement is being sought as described in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properSection 12; or (e) for to provide any judgment, fine indemnification or penalty which the Company advancement of expenses that is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding (A) This Coverage Section does not apply to, and no coverage will be available under this Coverage Section for, Loss from any provision Claim: (1) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any fact, circumstance, situation, transaction, event or Wrongful Act that, before the Inception Date of this Agreement Policy stated in ITEM 2(a) of the Declarations, was the subject of any notice given under any employment practices liability or other similar management liability policy or coverage section of which this Coverage Section is a direct or indirect renewal or replacement; (2) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any prior and/or pending litigation or administrative, regulatory or arbitration proceeding, including any audit by the Office of Federal Contract Compliance Programs, against any Insured as of the applicable Pending or Prior Date stated in ITEM 3 of the Declarations, or the same or substantially the same fact, circumstance, situation, transaction, event or Wrongful Act underlying or alleged therein; (3) for any actual or alleged violation of the responsibilities, duties or obligations imposed under the Employee Retirement Income Security Act of 1974 (ERISA) (except section 510 thereof), the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA), Fair Labor Standards Act (FLSA) (except the Equal Pay Act), the Worker Adjustment and unless Indemnitee ultimately is successful on Retraining Notification Act (WARN), the merits with respect Occupational Safety and Health Act (OHSA), or any amendments thereto or regulations promulgated thereunder, or any similar provisions of any federal, state or local statute, ordinance, regulation or common law; provided, that this EXCLUSION (A)(3) shall not apply to any Employment Claim for Retaliation; (4) for any actual or alleged violation of the responsibilities, duties or obligations imposed under the National Labor Relations Act (NLRA), or any amendments thereto or regulations promulgated thereunder, or any similar provisions of any federal, state or local statute, ordinance, regulation or common law; (5) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any lockout, strike, picket line, hiring of replacement workers or other similar actions in connection with labor disputes or labor negotiations; (6) for bodily injury (other than mental anguish or emotional distress), sickness, disease or death of any person or damage to or destruction of any tangible property including loss of use thereof whether or not it is damaged or destroyed; (7) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged obligation of any Insured pursuant to any workers’ compensation, unemployment insurance, Social Security or disability benefits law, or any similar provisions of any federal, state, or local statute, ordinance, regulation or common law; provided, that this EXCLUSION (A)(7) shall not apply to any Employment Claim for Retaliation; (8) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving the liability of others assumed by any Insured under any written or oral contract or agreement; provided, that this EXCLUSION (A)(8) shall not apply to the extent that an Insured would have been liable in the absence of such claimcontract or agreement; (9) made against a Subsidiary or listed Affiliate or any Insured Person of such Subsidiary or Affiliate for any Wrongful Act committed or allegedly committed during any time when such entity was not a Subsidiary or (10) for any actual or alleged breach of any Independent Contractor Services Agreement or Third Party Services Agreement; (11) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving: (a) any actual, alleged, or threatened exposure to, generation, storage, transportation, discharge, emission, release, seepage, dispersal, escape, treatment, removal, handling, processing or disposal of any Pollutants; or (b) any order, direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize any Pollutants; provided, that this EXCLUSION (A)(11) shall not apply to any Employment Claim for Retaliation; or (12) based upon, arising out of, directly or indirectly resulting from, in consequence of, or in any way involving any actual or alleged violation of the Interstate Commerce Act of 1887, the Company shall not be obligated Xxxxxxx Antitrust Act of 1890, the Xxxxxxx Act of 1914, the Xxxxxxxx-Xxxxxx Act of 1936, the Cellar-Xxxxxxxx Act of 1950, the Federal Trade Commission Act of 1914, or any other federal statute involving antitrust, monopoly, price fixing (including horizontal or other price fixing of wages, hours, salaries, compensation, benefits or any other terms and conditions of employment), price discrimination, predatory pricing or restraint of trade activities, or of any regulations promulgated under this Agreement to make any indemnity or in connection with any claim made against Indemniteeof the foregoing statutes, or of any similar provisions of any federal, state or local statute, ordinance, regulation or common law. (B) This Coverage Section does not apply to, and no coverage will be available under this Coverage Section for, that part of Loss, other than Defense Expenses: (a1) which constitutes Benefits due or to become due or the equivalent value of such Benefits; provided, that this EXCLUSION (B)(1) shall not apply to any Employment Claim for Wrongful Termination; (i2) an accounting of profits made from the purchase and sale (which constitutes costs associated with providing any accommodation for persons with disabilities or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act any other status which is protected under any applicable federal, state or similar provisions of state statutory law local statute, ordinance, regulation or common law, regardless of whether the securities are subject including but not limited to the requirements Americans With Disabilities Act, the Civil Rights Act of 1964, or any amendments thereto or regulations promulgated under any such provisionslaw; or (3) which constitutes costs of compliance with any order for, grant of or agreement to provide non-monetary relief. (iiC) This Coverage Section does not apply to, and no coverage will be available under this Coverage Section for, Loss, other than Defense Expenses, from any reimbursement of the Company by Indemnitee Claim for any actual or alleged breach 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 Companywritten employment contract; provided, as required in each case under the Exchange Act that this EXCLUSION (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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); (bC) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) shall not apply to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or an Insured would have been liable in the right absence of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationwritten employment contract.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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 Stockholder Indemnitors as set forth in Section 14(c)); or (b) for any Proceedings with respect to which final judgment is rendered against Indemnitee for payment of (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) any Proceeding involving the enforcement of non-compete and/or non-disclosure agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; or (d) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not (i) apply to any personal or umbrella liability insurance maintained by Indemnitee, or, (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c); (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Nothing in this Agreement, including the provisions set forth in the “Release of Claims”, “Absence of Certain Claims”, “Continuing Obligations”, “Cooperation”, and “Compliance with Law or Legal Process” paragraphs, shall prevent you (or your attorney) from (a) lawfully contacting, filing a charge or complaint with, providing information to, or cooperating with any governmental or regulatory agency or body (such as the federal Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), the Securities Exchange Commission (“SEC”), or any other state or local agency), or participating in any investigation or proceeding conducted by the EEOC, NLRB or such agency; (b) assisting another in taking any of the actions in clause (a); (c) making statements or disclosures regarding any sexual assault or sexual harassment dispute in compliance with the Speak Out Act; of (d) engaging in any other legally protected or concerted activities, including, if you are not a supervisor, discussing terms, conditions, or benefits of employment with others for the mutual aid or protection of employees; provided, however, you release and waive any right to, and agree not to seek, any individual monetary relief in any such charge, complaint, investigation, or proceeding, and if you receive any such individual monetary relief, the Company will be entitled to an offset for the payments made to you under this Agreement; or, communicating directly with, cooperating with, providing relevant information to, testifying before, or otherwise assisting in an investigation or proceeding by the Securities and Exchange Commission (“SEC”), Financial Industry Regulatory Authority (“FINRA”), or any other governmental or regulatory body or official(s) or self-regulatory organization (“SRO”) regarding a possible violation of law, rules, or regulations; provided, however, you release and waive any right to, and agree not to seek any individual monetary relief from the Company and Releasees based upon any such investigation or proceeding. You also waive the right to initiate or participate in any class or collective action with respect to any Claim against the Company or the Releasees. Notwithstanding any provision of this Agreement, this Agreement and unless Indemnitee ultimately is successful on the merits with respect does not limit your right to receive an award for information provided to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationgovernmental agency.

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) except as provided for in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseXxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgment, fine payment to Indemnitee that is finally determined to be unlawful under the procedures and subject to the presumptions of this Agreement. The exclusion in Section 8.1(c) shall not apply to counterclaims or penalty which the Company is prohibited affirmative defenses asserted by applicable law from paying as indemnificationIndemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for (i) an accounting of profits made from the purchase and sale amounts otherwise indemnifiable hereunder (or sale for which advancement is provided hereunder) if and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of extent that Indemnitee has otherwise actually received such provisionsamounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not i apply to any personal or umbrella liability insurance maintained by Indemnitee, or (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c); (b) to indemnify for any reimbursement of of, or payment to, 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 SOX or any formal policy of the Xxxxxxxx-Xxxxx Act of 2002 Company adopted by the Board (the “Xxxxxxxx-Xxxxx Act”or a committee thereof), or the payment any other remuneration paid to the Company of profits arising from the purchase and sale Indemnitee if it shall be determined by Indemnitee of securities a final judgment or other final adjudication that such remuneration was in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)law; (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of Nothing in this Agreement and unless Indemnitee ultimately is successful Lease will be taken to require or impose on the merits with respect Tenant any obligation to undertake or pay for (whether as Outgoings or otherwise): any such claimrepair, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemniteemaintenance, replacement or work: (a) for (i) an accounting of profits made from a structural nature (except that the purchase and sale (Tenant shall be obliged to undertake repair, maintenance, replacement or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject work to the requirements of such provisions; or (ii) any reimbursement of roof if the Company by Indemnitee expenditure incurred as a result of any bonus or other incentive-based or equity-based compensation or one work package is less than $5,000 plus GST and the exception in this clause shall not apply in respect 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 (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 Actbuilding wash); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationof a capital nature, in its sole discretion, pursuant or to the powers vested in the Company under applicable lawincur any capital expenditure; (ciii) in relation to any inherent defects or defect in the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreementdesign or construction of the building; (div) in connection with relation to the repair and maintenance of plumbing and drainage beyond keeping the pipes in a judicial action by free flowing condition from their point of entry or in exit (as the right case may be) within the premises to their point of entry or exit (as the Companycase may be) into the trunk pipe or drain; (v) for which the Landlord has insured, or is obliged to insure; or (vi) in respect of any claimasbestos or other harmful or unsafe material in, issue within or matter as to which on the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only Premises (except to the extent disclosed to the Tenant in writing prior to the Commencement Date, to the extent it is otherwise known to the Tenant prior to the Commencement Date or to the extent it is caused by the Tenant), except to the extent: (vii) that any court such repair, maintenance, replacement or work relates to Fitout Works or Xxxxxx’s fixtures and fittings which shall in which such action was brought shall determine upon application that, despite all instances remain the adjudication of liability but in view of all the circumstances sole responsibility of the case, Tenant; (viii) any damage is intentionally done or caused by the Indemnitee Tenant or any agent of the Tenant; (ix) it is fairly rendered necessary by any default or misconduct of the Tenant or any agent of the Tenant; (x) it is rendered necessary by an act or omission by the Tenant or any agent of the Tenant that occurred on or about the Premises and/or the Land and reasonably entitled to indemnification for such Expenses as such court shall deem properwhich constitutes an imprisonable offence; or (exi) for any judgmentit is rendered necessary by or as a result of the number or sex of the Tenant’s employees; in respect of, fine or penalty resulting from, fair wear and tear arising from reasonable use ; or which the Company Landlord is prohibited by applicable law from paying as indemnificationobliged to perform under this Lease.

Exclusions. 7.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseXxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgment, fine payment to Indemnitee that is finally determined to be unlawful under the procedures and subject to the presumptions of this Agreement. The exclusion in Section 7.1(c) shall not apply to counterclaims or penalty which the Company is prohibited affirmative defenses asserted by applicable law from paying as indemnificationIndemnitee in an action brought against Indemnitee.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee:Proceeding (or any part of any Proceeding): (a) for which payment has actually been made to or on behalf of Indemnitee under any statute, insurance policy procured by the Company, indemnity provision, vote or otherwise, except (i) with respect to any excess beyond the amount paid, subject to any subrogation rights set forth in Section 13 of this Agreement, and (ii) as set forth in Section 13(b) of this Agreement; (b) for an accounting or disgorgement of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of federal, state or local statutory law or common law, regardless of whether the securities are subject if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which Indemnitee has consented); (c) for any reimbursement to the requirements of such provisions; Company by Indemnitee or (ii) any reimbursement of the Company forfeiture 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 Section 10D of the Exchange Act or other applicable law (including (x) any such reimbursements or forfeitures that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-SOX Act or Section 954 of the Xxxx–Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Xxxx Street Reform and Consumer Protection Act”), or (y) 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 SOX Act), if Indemnitee is held liable therefor (including pursuant to any settlement arrangements to which Indemnitee has consented); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingd) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemniteesindemnitees (not by way of defense), unless (i) the Board authorized the Proceeding (or any the relevant part of any the Proceeding) prior to its initiation or ), (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law [(including Jersey Law)], (iii) otherwise authorized in Section 12(d) of this Agreement, (iv) with respect to proceedings brought to establish or enforce a right to indemnification or advancement under this Agreement or under any other agreement, provision in the Articles of Association or applicable law, or (v) otherwise required by applicable law; (ce) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in if a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent competent jurisdiction determines that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law [(including Jersey Law)] in a final judgment from paying as indemnificationwhich there is no further right of appeal; or (f) to the extent prohibited by applicable law[, including Jersey Law].

Exclusions. Notwithstanding the terms of Section VI(A), COMPANY will have no liability for any provision infringement or misappropriation claim of this Agreement and unless Indemnitee ultimately is successful on any kind to the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for extent that it results from: (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject modifications to the requirements of such provisionsService made by a party other than COMPANY or COMPANY’s authorized representative; or (ii) any reimbursement use, resale or referral of the Company Service in combination with other products, equipment, software, services or data not supplied by Indemnitee COMPANY to the extent the infringement would not have occurred but for such combination, (iii) to the extent different from specifications contained in the Documentation, COMPANY’s compliance with Reseller’s or the applicable Customer’s requirements, specifications or instructions, (iv) any use of any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities release of the CompanyService other than the most current release made after notice to upgrade to avoid an infringement or misappropriation claim, as required in each case under the Exchange Act (including v) any such reimbursements that arise from an accounting restatement modification of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 Service not made by COMPANY or at its express direction, (the “Xxxxxxxx-Xxxxx Act”)vi) any third party open source software, or (vii) any data accessed, uploaded, downloaded, stored, displayed or otherwise processed by the payment COMPANY platform. Reseller Indemnity. Xxxxxxxx agrees to the Company of profits indemnify and hold harmless COMPANY and its affiliates and their directors, officers and employees from and against all taxes, losses, damages, liabilities, costs and expenses, including attorneys’ fees and other legal expenses, arising directly or indirectly from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, or in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (marketing, promotion or any part resale of any Proceeding) prior to its initiation or Service by Reseller; (ii) any unauthorized combination by Reseller with products and services not provided by COMPANY under this agreement; (iii) any negligent, reckless or intentionally wrongful act of Reseller or Reseller employees, contractors or agents, (iv) any misrepresentations by Reseller to a third party regarding the Company provides Services and/or COMPANY, (v) any breach by Reseller, Resellers employees, contractors or agents of any of the indemnificationcovenants, representations or warranties contained in this Agreement, or (vi) any failure of Reseller to perform its sole discretionduties and obligations in accordance with all applicable laws, pursuant rules and regulations. INTELLECTUAL PROPERTY. Ownership. Reseller expressly acknowledges that, as between COMPANY and Reseller, COMPANY owns all worldwide right, title and interest in and to the powers vested Service, Documentation, and all improvements thereto, and other proprietary rights therein. Reseller will not delete or in any manner alter the Company under applicable law; (c) copyright, trademark, and other proprietary rights notices appearing on the Service as delivered or made available to Reseller. COMPANY reserves all rights to the extent Service, Documentation, COMPANY copyrights and COMPANY trademarks that Indemnitee is indemnified and actually received such payment other than pursuant to are not expressly granted in this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of anything in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against involving the Indemnitee: (a) subject to Section E.4, for which payment has actually been received by or on behalf of the Indemnitee (and not subsequently returned) 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) except as provided in Section C.3(d) of this Agreement, in connection with any Proceeding (or any part of any Proceedings) initiated by the Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by the Indemnitee against the Company, any director, officer, employee or other indemnitees of the Company or any other party, and not by way of defense, unless (i) the Board of Directors has authorized the Proceeding (or any part of any Proceeding) prior to its initiation; (ii) the Proceeding is to enforce indemnification rights under this Agreement initiated pursuant to Section C.3(a) of this Agreement or any applicable law; or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; or (c) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by the Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and sale by the Indemnitee of securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act); ; or (biii) except as otherwise provided in Sections 6.01(e), prior to a Change any reimbursement of Control, in connection with any Proceeding (or any part the Company by the Indemnitee of any Proceeding) initiated compensation pursuant to any compensation recoupment or clawback policy adopted by Indemniteethe Board of Directors or the compensation committee of the Board of Directors, including but not limited to any Proceeding (or any part such policy adopted to comply with stock exchange listing requirements implementing Section 10D of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this AgreementExchange Act; (d) in connection with a judicial action to the extent brought about or contributed to by the dishonesty or in the right fraud of the CompanyIndemnitee seeking payment hereunder; provided, in respect of any claimhowever, issue or matter as to which notwithstanding the foregoing, the Indemnitee shall have been adjudicated be indemnified under this Agreement as to any claims upon which suit may be brought against him by reason of any alleged dishonesty on his or her part, unless a judgment or other final judgment in a court of law to be liable for fraud or willful default in the performance of his duty adjudication thereof adverse to the Company unless Indemnitee establishes that he or she committed (i) acts of active and only deliberate dishonesty, (ii) with actual dishonest purpose and intent, and (iii) which acts were material to the extent that any court in which such cause of action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properso adjudicated; or (e) for any judgment, fine or penalty which the Company payment it is prohibited by applicable law from paying as indemnificationindemnity by applicable law. For the purpose of this Agreement, applicable law shall include U.S. federal law, Cayman Islands law, the governing law of this Agreement and, prior to the HK Exemption, sections 468 and 469 of the Hong Kong Companies Ordinance (Cap 622).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not [(i)] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or, (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(c) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company 4.1 The Parent shall not be obligated under this Agreement liable in respect of any Warranty Claim to make any indemnity in connection with any claim made against Indemniteethe extent that the matter or circumstance giving rise to the Warranty Claim: (a) was actually known to the Purchaser (within the Purchaser’s actual awareness having the meaning set out in paragraph 4.1(f) below) at the date of this agreement; (b) was Disclosed in this agreement including the schedules and/or annexes hereto; (c) was specifically provided for in the Accounts or Locked Box Accounts (including, without limitation, by way of provision, accrual, liability or a note or a statement in any report forming part of the Accounts or the Locked Box Accounts) or the enterprise to equity value bridge relating to the Transaction in the Agreed Form; (d) is the subject of a claim under the Tax Deed and the Purchaser receives a payment in respect thereof under the Tax Deed; (e) is or arises directly or indirectly from any matter or circumstance Disclosed in the Disclosed in the Disclosed Information; (f) is a matter or circumstance of which the Purchaser has actual knowledge at the date of this agreement (and, for the purpose of this Schedule 3, the Purchaser’s actual awareness and/or actual knowledge means the actual awareness of any one or more of Xxxx Xxxxx, Xxxxxxxxxx Xxxxxx xxx Xxxxxx, Xxxxxxxx Camera and Xxxxxxx Bhirle, Xxxxx Xxxxxxx, Xxx Xxxxxxx, Xxxx Xxxxxxx, Xxxxxxx xx Xxxxxx and Xxxxxx Xxxxxx Olalla who shall be deemed to have actual knowledge of the contents of the Disclosed Information to the extent Disclosed and any due diligence report (in draft or final form) prepared by or for any member of the Purchaser’s Group and made available to any member of the Purchaser’s Group on or before the date of this agreement); or (g) has been or is made good or is otherwise compensated for without cost to the Purchaser or any member of the Target Group. 4.2 The Parent shall not be liable in respect of a Non-Tax Claim to the extent the relevant liability would not have arisen but for: (a) any liability for Tax arising as a result of any Event or Events (as defined in the Tax Deed) occurring, or any profits earned, accrued or received, in each case in the ordinary course of business of a member of the Target Group in the period from the Locked Box Date until First Completion or (in relation to a Deferred Target Subsidiary) the relevant Deferred Completion; (b) a change in legislation or a change in the interpretation of legislation on the basis of case law made after the date of this agreement (whether relating to Taxation, the rate of Taxation or otherwise) or any amendment to or the withdrawal of any practice previously published by a Tax Authority, in either case occurring after the date of this agreement, whether or not that change, amendment or withdrawal purports to be effective retrospectively in whole or in part; or (c) any change after First Completion (or in the case of any Deferred Target Subsidiaries, the relevant Deferred Completion) of the date to which any member of the Target Group makes up its accounts or in the bases, methods, principles or policies of accounting of any member of the Target Group other than a change which is necessary because such bases, methods, principles or policies of accounting as at the First Completion Date (or in the case of any Deferred Target Subsidiaries, the relevant Deferred Completion Date) are not in accordance with any published accounting practice or principle then current; or (d) any act or omission of any member of the Target Group on or before First Completion (or in the case of any Deferred Target Subsidiary, on or before the relevant Deferred Completion) carried out at the written request of the Purchaser or any act or omission of the Purchaser, any member of the Purchaser’s Group or any member of the Target Group after First Completion (or in the case of any Deferred Target Subsidiary, on or before the relevant Deferred Completion) but, in each case, excluding any act or omission taken by the Purchaser or any member of the Purchaser’s Group or any member of the Target Group in compliance with any legal obligations it incurred prior to: (i) an accounting the date of profits made from this agreement in the purchase and sale (or sale and purchase) by Indemnitee of securities case of the Company within the meaning of Section 16(b) Purchaser or any member of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisionsPurchaser’s Group; or (ii) First Completion or the relevant Deferred Completion (as applicable) in the case of any reimbursement member of the Company by Indemnitee Target Group; or to bring it into compliance with applicable law or regulation; or (iii) in the ordinary course of any bonus business; or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from (iv) carried out at the sale of securities written request 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 (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); (b) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properParent; or (e) any failure or omission by any member of the Target Group to make any valid claim, election, surrender or disclaimer, to give any valid notice or consent or to do any other thing under the provisions of any enactment or regulation relating to Taxation after First Completion (or in the case of any Deferred Target Subsidiary, after the relevant Deferred Completion), the making, giving or doing of which was taken into account in computing the provisions for Taxation in the Accounts or the Locked Box Accounts and was notified to the Purchaser in writing a reasonable period in advance of the date on which such claim, election, surrender, disclaimer, notice or consent is required to be made or given; or (f) any judgmentclaim, fine election, surrender, revocation, amendment, withdrawal or penalty disclaimer made or notice or consent given after First Completion (or in the case of any Deferred Target Subsidiary, after the relevant Deferred Completion) by any member of the Target Group or any member of the Purchaser’s Group under the provisions of any enactment or regulation relating to Taxation other than any claim, election, surrender, revocation, amendment, withdrawal, disclaimer, notice or consent assumed to have been made, given or done in computing the amount of any allowance, provision or reserve in the Accounts or the Locked Box Accounts or which is made at the Company is prohibited prior request of the Parent pursuant to its rights under the Tax Deed; or (g) a cessation, or any change in the nature or conduct, of any trade carried on by applicable law from paying as indemnificationany member of the Target Group at First Completion (or in the case of any Deferred Target Subsidiary, at the relevant Deferred Completion), being a cessation or change occurring on or after First Completion (or in the case of any Deferred Target Subsidiary, on or after the relevant Deferred Completion).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy, contract, agreement or other indemnity provision or arrangement (whether with the Company or any other corporation, limited liability company, partnership, joint venture, trust , employee benefit plan or other entity), except with respect to any excess beyond the amount actually paid under any insurance policy contract, agreement or other indemnity provision or arrangement; or (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 1.02 hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 8.06 of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on Deed to the merits with respect to any such claimcontrary, the Company shall does not be obligated under this Agreement to Deed make any indemnity in connection with any claim made against Indemniteerespect of: (a) any claim brought against the Indemnitee by the Company or an Associated Company for negligence, default, breach of duty or breach of trust; (b) any liability of the Indemnitee to pay: (i) a fine imposed in criminal proceedings; or (ii) a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising): (c) any liability incurred by the Indemnitee: (i) in defending any criminal proceedings in which he is convicted; (ii) in defending any civil proceedings brought by the Company or an Associated Company in which judgment is given against him; or (iii) in connection with any application under Section 661(3) or (4) CA 2006 or Section 1157 CA 2006 in which the court refuses to grant the Director relief; and references to a conviction, judgment or refusal of relief are to the final decision in the proceedings which shall be determined in accordance with Section 234(5) CA2006; (d) any claim for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other provision, except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; (e) (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the U.S. Securities Exchange Act of 1934, as amended, or any successor provision or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 due to the material noncompliance of the Company Company, as a result of the misconduct of Indemnitee, with any financial reporting requirement under the securities laws pursuant to Section 304 of the Xxxxxxxx-Xxxxx Act of 2002 (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); (bf) any claim for which payment is expressly prohibited by law; or (g) except as otherwise provided in Sections 6.01(e)Section 13(d) of this Deed, prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or or its directors, officers, employees or other indemnitees, unless (i) the Board board of directors of the Company authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, (ii) such payment arises in connection with any mandatory counterclaim or cross-claim or affirmative defense brought or raised by Indemnitee in any Proceeding (or any part of any Proceeding), or (iiiii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in . These exclusions shall not limit the right to advancement of Expenses under Section 9 or otherwise under this Deed pending the Company, in respect outcome of any claimProceeding unless such advancement of Expenses is expressly prohibited by law. Notwithstanding the foregoing, issue or matter as this provision shall not limit Indemnitee’s obligation to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such repay Expenses as such court shall deem proper; or (e) for any judgment, fine expressly contemplated elsewhere in this Deed or penalty which the Company is prohibited as otherwise expressly required by applicable law from paying as indemnificationlaw.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) 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; or (b) for any Proceedings with respect to which final judgment is rendered against Indemnitee for payment of (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (as defined in Section 2(a) hereof) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-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 XxxxxxxxSxxxxxxx-Xxxxx Act);, or (bc) any Proceeding involving the enforcement of non-compete and/or non- disclosure agreements or the non-compete and/or non-disclosure provisions of employment, consulting or similar agreements the Indemnitee may be a party to with the Company or any subsidiary of the Company or any other applicable foreign or domestic corporation, partnership, joint venture, trust or other enterprise, if any; or (d) except as otherwise provided in Sections 6.01(e), prior to a Change Section 13(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim Proceeding or any claim, issue or matter therein made against Indemnitee: (a) except as provided for in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond the amount paid under any insurance policy, contract, agreement, other indemnity provision or otherwise; (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceedingclaim, issue or matter therein) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceedingclaim, issue or matter therein) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, the Certificate of Incorporation or Bylaws unless (i) the Board authorized the Proceeding (or any part of any Proceedingclaim, issue or matter therein) prior to its initiation or (ii) the Company provides the indemnificationindemnification or the advancement of Expenses payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseXxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgmentpayment to Indemnitee that is finally determined to be unlawful under the procedures and subject to the presumptions of this Agreement. The exclusion in Section 8.1(c) shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in any Proceeding or any claim, fine issue or penalty which the Company is prohibited by applicable law from paying as indemnificationmatter therein brought against Indemnitee.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claim, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against Indemnitee: (a) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; law or (ii) any 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 XxxxxxxxSxxxxxxx-Xxxxx Act of 2002 (the “XxxxxxxxSxxxxxxx-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 XxxxxxxxSxxxxxxx-Xxxxx Act);; or (b) except as otherwise provided in Sections Section 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee (other than any cross claim or counterclaim asserted by the Indemnitee), including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (ior for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not apply to any personal or umbrella liability insurance maintained by Indemnitee; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the Xxxxxxxx-Xxxxx ActAct of 2002 (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(c) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise; provided that the foregoing shall not [i] apply to any personal or umbrella liability insurance maintained by Indemnitee, [or (ii) affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law[, regardless of whether or from the securities are subject to the requirements purchase or sale by Indemnitee of such provisions; or securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Act of 2002 (ii“SOX”)]; (c) to indemnify for any reimbursement of of, or repayment to, the Company by Indemnitee of (i) any bonus or other incentive-based or equity-based compensation or of any profits realized by Indemnitee from the sale of securities of the CompanyCompany pursuant to the terms of (A) Section 304 of SOX, as required in each case under the (B) Exchange Act Rule 10D-1 or (including C) any such reimbursements that arise from an accounting restatement formal policy of the Company pursuant adopted by the Board (or a committee thereof) or (ii) any other remuneration paid to Section 304 Indemnitee if it shall be determined by a final judgment or other final adjudication that payment of the Xxxxxxxx-Xxxxx Act of 2002 (the “Xxxxxxxx-Xxxxx Act”), such remuneration was or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities would have been in violation of Section 306 of the Xxxxxxxx-Xxxxx Act)law; (bd) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee is indemnified Company under this Agreement or under any directors’ and actually received such payment other than pursuant to this Agreement; (d) in connection with a judicial action officers’ liability insurance policies maintained by or the Company in the right of the Company, suit for which indemnification or advancement is being sought as described in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properSection 12; or (e) for to provide any judgment, fine indemnification or penalty which the Company advancement of expenses that is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity in connection with any claim made against IndemniteeAgreement: (a) to indemnify for amounts otherwise indemnifiable hereunder (or for which advancement is provided hereunder) if and to the extent that Indemnitee has otherwise actually received such amounts under any insurance policy, contract, agreement or otherwise[; provided that the foregoing shall not [i] apply to any personal or umbrella liability insurance maintained by Indemnitee , [or [ii] affect the rights of Indemnitee or the Fund Indemnitors as set forth in Section 13(c)]; (b) to indemnify for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities 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, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (the “Xxxxxxxx-Xxxxx Act”), or the payment to the Company of profits arising from the purchase and or sale by Indemnitee of such securities in violation of Section 306 of the XxxxxxxxSxxxxxxx-Xxxxx ActAct of 2002 (“SOX”); (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection indemnify with any Proceeding (or any part of respect to any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated thereof, brought by Indemnitee against the Company Company, any legal entity which it controls, any director or its directors, officers, employees officer thereof or other indemniteesany third party, unless (i) the Board authorized has consented to the initiation of such Proceeding (or any part of any Proceeding) prior to its initiation or thereof and (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, however, that this Section 7(d) shall not apply to (cA) to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee or (B) any action brought by Indemnitee for indemnification or advancement from the extent that Indemnitee Company under this Agreement or under any directors’ and officers’ liability insurance policies maintained by the Company in the suit for which indemnification or advancement is indemnified and actually received such payment other than pursuant to this Agreement;being sought as described in Section 12; or (d) in connection with a judicial action by to provide any indemnification or in the right advancement of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent expenses that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying (as indemnificationsuch law exists at the time payment would otherwise be required pursuant to this Agreement).

Exclusions. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnification payment in connection with any claim made against Indemnitee: (a) 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 amount beyond the amount paid under any applicable primary, umbrella, or excess insurance policy or other indemnity provision; (b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common lawlaw if it is finally adjudged by a court of competent jurisdiction that such an accounting of profits is required, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 purchase or sale of securities of the Company, as required in each case under the Exchange Act Act, the rules of any securities exchange on which the Company’s securities are listed or otherwise applicable law (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Xxxxxxxx-Xxxxx Sarbanes Oxley Act of or 2002 (the “Xxxxxxxx-Xxxxx Sarbanes Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of or securities in violation of Section 306 of the Xxxxxxxx-Xxxxx Sarbanes Oxley Act)) if it is finally adjudged by a court of competent jurisdiction that any such reimbursement is required; (bc) except as otherwise provided in Sections 6.01(e), prior to a Change Section 14(d) of Controlthis Agreement, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directorsmembers of the Board, officers, employees employees, agents or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation initiation, or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; ; provided, that for the avoidance of doubt, this clause (c) shall not apply to the extent that counterclaims or affirmative defenses asserted by Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;in an action brought against Indemnitee; or (d) in connection with a judicial action by or in the right of the Company, in respect of any claim, issue or matter as to for which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company payment is prohibited by applicable law from paying as indemnificationlaw.

Exclusions. Notwithstanding any provision of this Agreement to the contrary (including, without limitation, Section 3.1, above, and unless Indemnitee ultimately is successful on the merits with respect to any such claimSection 4.1 and Section 8.6(b), below), the Company shall not be obligated under this Agreement to make indemnify Indemnitee from or against any indemnity Liabilities or Expenses incurred by Indemnitee, or to advance to Indemnitee any Expenses, in connection with any claim made against Indemniteewith: (a) for 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 the Company within the meaning of pursuant to Section 16(b) of the Exchange Act or similar provisions of state statutory law law, or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any for reimbursement of to 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 as required 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 (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); (b) except as otherwise provided in Sections 6.01(efor an action, suit or other proceeding contemplated by Section 8.6(b), prior to a Change of Controlbelow, in connection with any Proceeding action, suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, Indemnitee (including any Proceeding such action, suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees), unless (i) the Board authorized or consented in writing to the Proceeding action, suit or other proceeding (or any part of any Proceedingthereof) prior to its initiation initiation, or (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement; (d) any claim, issue or matter in connection with a judicial action Proceeding by or in the right of the Company, Company to procure a judgment in respect of any claim, issue or matter its favor as to which the Indemnitee shall have been adjudicated by final judgment in a court of law adjudged to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any the Delaware Chancery Court or the court in which such action Proceeding was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification indemnity for such Expenses as which the Delaware Chancery Court or such other court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnification.

Exclusions. Notwithstanding any provision of this Agreement and unless Indemnitee ultimately is successful on to the merits with respect to any such claimcontrary, the Company shall not be obligated under this Agreement to make any indemnity indemnify in connection with any claim made against Indemniteewith: (a) for (i) an An accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or any similar provisions successor statute, provided that the foregoing shall not relieve the Company of state statutory law or common law, regardless its obligations to provide for advance of whether Expenses in accordance with Section 4.1 unless the securities are subject party making the determination of entitlement to indemnification pursuant to Article 5 of this Agreement reasonably determines that Indemnitee clearly violated Section 16(b) of the Exchange Act and must disgorge the profits to the requirements corporation. Notwithstanding anything to the contrary stated or implied in this Section 3.4(a), indemnification pursuant to this Agreement relating to any Proceeding against Indemnitee for an accounting of such provisions; profits made from the purchase or (ii) any reimbursement of the Company sale 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 the provisions of Section 304 16(b) of the Xxxxxxxx-Xxxxx Exchange Act or similar provisions of 2002 (the “Xxxxxxxx-Xxxxx Act”)any federal, state or the payment to the Company local laws shall not be prohibited if Indemnitee ultimately establishes in any Proceeding that no recovery of such profits arising from the purchase and sale by Indemnitee of securities in violation of is permitted under Section 306 16(b) of the Xxxxxxxx-Xxxxx Act);Exchange Act or similar provisions of any federal, state or local laws; or (b) except Except as otherwise provided in Sections 6.01(e)contemplated by Section 6.2, prior to a Change of Controlany action, in connection with any Proceeding suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee, Indemnitee (including any Proceeding such action, suit or other proceeding (or any part of any Proceedingthereof) initiated by Indemnitee against the Company or its directors, officers, employees employees, agents or other indemnitees), unless (i) the Board of Directors authorized the Proceeding action, suit or other proceeding (or any part of any Proceedingthereof) prior to its initiation or initiation, (ii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law; law or (ciii) to the extent that Indemnitee Proceeding is indemnified and actually received such payment instituted after a Change in Control (other than pursuant to this Agreement; (d) a Change in connection with Control approved by a judicial action by or in the right majority of the Company, directors on the Board of Directors who were directors immediately prior to such Change in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law to be liable for fraud or willful default in the performance of his duty to the Company unless and only to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem proper; or (e) for any judgment, fine or penalty which the Company is prohibited by applicable law from paying as indemnificationControl).

Exclusions. 8.1. Notwithstanding any provision of in this Agreement and unless Indemnitee ultimately is successful on the merits with respect to any such claimAgreement, the Company shall not be obligated under this Agreement to make any indemnity indemnity, contribution or advancement of Expenses in connection with any claim made against Indemnitee: (a) except as provided in Section 15.4, for which payment has actually been made to or on behalf of Indemnitee under any insurance policy of the Company or its Subsidiaries or other indemnity provision of the Company or its Subsidiaries, except with respect to any excess beyond any amounts that have actually been paid under any insurance policy, contract, agreement, other indemnity provision or otherwise as of such date with respect to such claim; or (ib) for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any similar successor statute) or similar provisions of state statutory law or common law, regardless of whether the securities are subject to the requirements of such provisions; or (ii) any 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 (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 (bc) except as otherwise provided in Sections 6.01(e), prior to a Change of Control, in connection with any Proceeding (or any part of any Proceeding) initiated or brought voluntarily by Indemnitee, including including, without limitation, any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, managers, managing members, employees or other indemnitees, other than a Proceeding initiated by Indemnitee to enforce its rights under this Agreement, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnificationindemnification payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law; (c) to the extent that Indemnitee is indemnified and actually received such payment other than pursuant to this Agreement;; or (d) in connection with a judicial action by or in for the right payment of the Company, in respect of any claim, issue or matter as to which the Indemnitee shall have been adjudicated by final judgment in a court of law amounts required to be liable for fraud or willful default in the performance of his duty reimbursed to the Company unless and only pursuant to the extent that any court in which such action was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances Section 304 of the caseSxxxxxxx-Xxxxx Act of 2002, the Indemnitee is fairly and reasonably entitled to indemnification for such Expenses as such court shall deem properamended, or any similar successor statute; or (e) for any judgmentpayment to Indemnitee that is determined to be unlawful by a final judgment or other adjudication of a court or arbitration, fine arbitral or penalty administrative body of competent jurisdiction as to which there is no further right or option of appeal or the Company is prohibited time within which an appeal must be filed has expired without such filing and under the procedures and subject to the presumptions of this Agreement; or (f) in connection with any Proceeding initiated by applicable law from paying as indemnificationIndemnitee to enforce its rights under this Agreement if a court or arbitration, arbitral or administrative body of competent jurisdiction determines by final judicial decision that each of the material assertions made by Indemnitee in such Proceeding was not made in good faith or was frivolous. The exclusions in this Article 8 shall not apply to counterclaims or affirmative defenses asserted by Indemnitee in an action brought against Indemnitee.