Limitations to Indemnification Sample Clauses

Limitations to Indemnification. The provisions of this Article VII shall be subject to the limitations of the 1940 Act.
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Limitations to Indemnification. (a) (i) The Company shall not be liable for any indemnifiable Losses that may be recovered by the Purchaser Related Parties (other than for breaches of any Company Fundamental Representations or any covenants of the Company or Fraud) unless and until the amount of such indemnifiable Losses, individually or in the aggregate, exceeds an amount equal to 2.00% of the Purchase Price (the “Indemnity Threshold”), but from and after such time as the indemnifiable Losses of the Purchaser Related Parties exceed the Indemnity Threshold, each applicable Purchaser Related Party shall be entitled to indemnity for the entire amount of all indemnifiable Losses of such Person, and (ii) the Purchaser shall not be liable for any indemnifiable Losses that may be recovered by the Company Related Parties (other than for breaches of any Purchaser Fundamental Representations or any covenants of the Purchaser or Fraud) unless and until the amount of such indemnifiable Losses, individually or in the aggregate, exceeds an amount equal to the Indemnity Threshold, but from and after such time as the indemnifiable Losses of the Company Related Parties exceed the Indemnity Threshold, each applicable Company Related Party shall be entitled to indemnity for the entire amount of all indemnifiable Losses of such Person. (b) The maximum amount of indemnifiable Losses that may be recovered from (i) the Company for any amounts due under Section 8.2 (other than for breaches of any Company Fundamental Representations or any covenants of the Company or Fraud) shall be an amount equal to 10.00% of the Purchase Price (the “Indemnity Cap”) and (ii) the Purchaser for any amounts due under Section 8.3 (other than for breaches of any Purchaser Fundamental Representations or any covenants of the Purchaser or Fraud) shall be an amount equal to the Indemnity Cap; provided that, other than with respect to Fraud, the maximum amount of indemnifiable Losses that may be recovered from the Company or from the Purchaser, as applicable, shall be an amount equal to the Purchase Price. (c) For purposes of the Company’s indemnification obligations under Section 8.2, including for purposes of both determining whether there has been a breach of any representation or warranty and for determining the amount of indemnifiable Losses resulting therefrom, the representations and warranties set forth in Article III of this Agreement that are qualified as to “material”, “materiality”, “material respects”, “Material Adverse Ef...
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Limitations to Indemnification. (a) Seller Indemnitors will have no liability for indemnification with respect to any of the matters described in Section 7.2 unless the total of all Buyer Damages with respect to such matters exceeds a threshold of $250,000, in which event Seller Indemnitors shall have liability for all Buyer Damages in excess of $250,000 as provided in this Section 7.6. Any Buyer Damages arising under Section 4.10 shall not be counted for the purposes of calculating the $250,000 threshold. Seller Indemnitors shall have liability for Buyer Damages and indemnification under this Agreement up to a maximum of $6,000,000 (subject to Section 7.6(b)) solely as follows: (i) The first $2,000,000 of Buyer Damages for which Buyer Indemnitees may be entitled to indemnification with respect to a claim under this Article 7 shall be paid to Buyer Indemnitees by offset adjustment from the amount otherwise payable to Seller pursuant to Section 2.4(b); and (ii) Any Buyer Damages in excess of $2,000,000 for which Buyer Indemnitees may be entitled to indemnification with respect to a claim under this Section 7 shall be paid to Buyer Indemnitees by offset of any amounts due or that become due to Seller pursuant to the Earnout. If, however, any of the Earnout or the amount payable pursuant to Section 2.4(b) has been paid to Seller before the assertion of a claim under this Section 7, Seller Indemnitors shall be liable to pay to Buyer Indemnitees up to the amount of all Earnout Payments previously distributed by Seller and Subsidiary but shall in no event be liable for any amount in excess of such previously distributed Earnout payments and payments pursuant to Section 2.4(b).
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Limitations to Indemnification. (a) The maximum amount of indemnifiable Losses that may be recovered by a Purchaser from the Company, or by the Company from a Purchaser, as applicable, shall be an amount equal to the aggregate purchase price paid by such Purchaser to the Company for its Shares under this Agreement (such amount, the “Cap Amount”). (b) No party hereto shall have any liability for Losses pursuant to Section 6.1 or Section 6.2 for any indirect, consequential, exemplary or punitive damages, except for (i) such damages that are paid to a third party in connection with a third-party claim and (ii) consequential or indirect damages that are reasonably foreseeable. (c) Notwithstanding anything to the contrary contained in this Agreement, (i) no Indemnified Party will be entitled to recover more than one time for any particular Losses under this Agreement and (ii) to the extent an Indemnifying Party has paid any Losses under this Agreement to any Indemnified Party, no other Indemnified Party shall be entitled to recover the same Losses in respect of the claims for which such Losses were paid. (d) Each Indemnified Party shall make reasonable efforts to mitigate or minimize all Losses upon and after becoming aware of any event or condition which would reasonably be expected to give rise to any Losses that are indemnifiable hereunder and, if an Indemnified Party fails to use commercially reasonable efforts to so mitigate any indemnifiable Losses under this sentence, the Indemnifying Party that would otherwise have an indemnity obligation hereunder with respect to such Losses shall have no liability for any portion of such Losses that reasonably would have been avoided or mitigated had the Indemnified Party made such efforts.
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Limitations to Indemnification. (a) The indemnification obligations of a Party (i) with respect to any breach, violation or inaccuracy of any representation or warranty made by such Party contained in this Agreement, other than with respect to those contained in Section 3.2(c) and Section 3.2(e), shall survive the Closing for a period of eighteen (18) months following the Closing Date, (ii) with respect to indemnification obligations relating to Sections 6.12, 6.13, 6.17, 6.18, 6.20, 8.3, 9.2(a)(iii), 9.4 and 11.1 and Article XII, shall survive the Closing indefinitely, and (iii) with respect to all other indemnification obligations, shall survive the Closing for three years following the Closing Date. All claims for indemnification made within the specified survival period shall survive the expiration of such periods. (b) Each of the representations and warranties contained in Articles III-IV and their various subparagraphs are intended for the benefit of Company and Operating Partnership, on the one hand, and Owners on the other hand, and may be waived in whole or in part, by them, but only by an instrument in writing signed by them. All rights to indemnification shall survive the Closing of the Transaction as provided in Section 9.3(a), but shall be limited as provided in Section 9.3(b)(ii) to the extent that the indemnitee gives the indemnitor written notice prior to Closing of same, or the indemnitee otherwise obtains knowledge of same prior to Closing, and the indemnitor nevertheless elects to close this transaction. Any such written notice shall state in the first paragraph thereof and in all capitalized letters that “THIS NOTICE IS GIVEN PURSUANT TO THE COMBINED CONTRIBUTION AND PURCHASE AND SALE AGREEMENT MADE AS OF DECEMBER 23, 2004, AND RELATES TO AN INDEMNIFICATION CLAIM UNDER SECTION 9.3(b).”
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Limitations to Indemnification. The Purchaser's right to indemnification shall be subject to the following limitations: 62 (i) in respect of Loss(es) suffered under Section 9.1 (a) above, the Purchaser's right to indemnification shall lapse if no notice of an Indemnification Claim shall have been given to the Seller on or before December 31, 1999, except that for Loss(es) suffered for breach of Section 6.21 of this Agreement, in which case the applicable statutory limitation period (periodo di prescrizione) shall apply; (ii) in respect of Loss(es) suffered under Section 9.1 (b), (c), (d) and (e) above, the Purchaser's right to indemnification shall lapse if no Indemnification Claim is notified to the Seller on or before the date in which the applicable statutory limitation period (periodo di prescrizione) will lapse;
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Limitations to Indemnification. The aggregate amount of all Losses for which an indemnifying party shall be liable pursuant to Section 8.02 or Section 8.03, as the case may be, shall not exceed $4,000,000.
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Limitations to Indemnification. (a) The Stockholders will not have any liability with respect to an Indemnified Person's Claim under Section 6.1(a) unless: (i) the Claim Notice made with respect to such Claim is made on or before 180 days after the Effective Time, and (ii) except for a Claim relating to the representations and warranties contained in Sections 4.2 or 4.5, the aggregate dollar amount of all Indemnified Persons' Claims exceeds $100,000, in which case the Stockholders will indemnify the Indemnified Persons only for the amount of those Claims that exceed $100,000. (iii) Notwithstanding anything to the contrary in this Agreement, no Stockholder will have any liability, to an Indemnified Person or otherwise, with respect to a Claim (A) regarding any Claim with respect to which a Claim Notice is not made on or before the 180th day following the Effective Time or (B) in excess of that Stockholder's Escrow Fund Contribution (except in the case of fraud or intentional misrepresentation by such Stockholder).
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Limitations to Indemnification. (a) The maximum amount of indemnifiable Losses that may be recovered from (i) the Company for any amounts due under Section 6.01 (other than for breaches of Section 3.01, Section 3.02, Section 3.09 or Section 3.13) shall be an amount equal to the Indemnification Cap and (ii) all Purchasers in the aggregate for any amounts due under Section 6.02 (other than for breaches of Section 4.01, Section 4.02 or Section 4.04) shall be an amount equal to the Indemnification Cap; and (b) No party hereto shall have any liability for Losses pursuant to Section 6.01 or Section 6.02 for any special, indirect, consequential (including lost profits) or punitive damages relating to a breach or alleged breach of this Agreement, except to the extent such Losses are incurred by a third person and constitute a portion of a Third-Party Claim.
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Related to Limitations to Indemnification

  • Exceptions to Indemnification Notwithstanding anything to the contrary contained herein, the Issuer’s obligations under Section 4(a) (Indemnification of Protected Persons) and Section 4(b) (Reimbursement of Expenses) shall not apply to any actions, suits or proceedings in which one or more officers, directors, partners, members or employees of the Administrator are making claims against the Administrator or one or more other officers, directors, partners, members or employees of the Administrator.

  • Conditions to Indemnification An indemnified party must give the other party(ies) prompt written notice of any claim and allow the indemnifying party to defend or settle the claim as a condition to indemnification. No settlement shall bind any party without such party’s written consent.

  • Right to Indemnification Each Person who was or is made a party or is threatened to be made a party to or is otherwise subject to or involved in any Action, by reason of the fact that he, she or it is or was a Member (including the Managing Member), is or was serving as the Company Representative (including any “designated individual”) or the Continuing Member Representative or an officer, manager or director (or equivalent) or, at the discretion of the Managing Member, any employee or agent, of the Managing Member, the Company or any of its Subsidiaries, or is or was an officer, manager or director (or equivalent) or, at the discretion of the Managing Member, any employee or agent, of the Managing Member, the Company or any of its Subsidiaries serving at the request of the Managing Member or the Company or any of its Subsidiaries as an officer, manager or director (or equivalent) or, at the discretion of the Managing Member, any employee or agent, of another corporation, partnership, joint venture, limited liability company, trust or other entity or which relates to or arises out of the property, business or affairs of the Company or any of its Subsidiaries, including service with respect to an employee benefit plan (an “Indemnitee”), whether the basis of such Action is alleged action in an official capacity as a director, manager, officer, employee or agent or in any other capacity while serving as an officer, manager, director, employee or agent, shall be indemnified by the Company against all expense, Liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid in settlement) reasonably incurred or suffered by such Indemnitee in connection therewith (“Indemnifiable Losses”); provided, however, that, such Indemnitee shall not be entitled to indemnification if such Indemnitee’s conduct constituted fraud or a knowing violation of Law; provided, further, however, except as provided in Section 7.4(d) with respect to Actions to enforce rights to indemnification, the Company shall indemnify any such Indemnitee pursuant to this Section 7.4 in connection with an Action (or part thereof but excluding any compulsory counterclaim) initiated by such Indemnitee only if such Action (or part thereof but excluding any compulsory counterclaim) was authorized by the Board.

  • Other Rights to Indemnification Indemnitee's rights of indemnification and advancement of expenses provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may now or in the future be entitled under applicable law, the Certificate, the Bylaws, an employment agreement, a vote of stockholders or Disinterested Directors, insurance or other financial arrangements or otherwise.

  • Limitations on Indemnification (a) Notwithstanding the provisions of Section 7.2, Seller shall not be required to indemnify or hold harmless any of Buyer Indemnified Parties on account of any Buyer Indemnified Losses under Section 7.2 unless the liability of Seller in respect of such Buyer Indemnified Loss, when aggregated with the liability of Seller in respect of all Buyer Indemnified Losses under Section 7.2, exceeds $250,000 (the “Threshold Amount”), in which event Buyer Indemnified Parties shall be entitled to indemnification from Seller in an amount equal to the aggregate amount of the Buyer Indemnified Losses. In no event shall the aggregate liability of Seller under Section 7.2 of this Agreement exceed $2,000,000 (the “Ceiling Amount”). Notwithstanding the foregoing, neither the Threshold Amount nor the Ceiling Amount shall be applicable to indemnification pursuant to Section 7.2(iii) or Section 7.2(iv) or with respect to the representations and warranties of Seller set forth in the first and second sentences of Section 3.2, Section 3.2(e), Section 3.8 and Section 3.10. Seller may satisfy any obligations arising pursuant to this Article 7 in any combination of cash or the surrender of Consideration Units for redemption (valued at $21.00 per Consideration Unit); provided that, Seller must provide written notice to Buyer of the intent to make a payment (in whole or in part) by surrendering Consideration Units for redemption at least five business days prior to the due date of any such payment. (b) Notwithstanding the provisions of Section 7.3, Buyer shall not be required to indemnify or hold harmless any of the Seller Indemnified Parties on account of any Seller Indemnified Loss under Section 7.3 unless the liability of Buyer in respect of such Seller Indemnified Loss, when aggregated with the liability of Buyer in respect of all Seller Indemnified Losses under Section 7.3, exceeds the Threshold Amount, in which event Seller Indemnified Parties shall be entitled to indemnification from Buyer in an amount equal to the aggregate amount of the Seller Indemnified Losses exceed the Threshold Amount. In no event shall Buyer be liable under Section 7.3 of this Agreement for any amount in excess of the Ceiling Amount. Notwithstanding the foregoing, neither the Threshold Amount nor the Ceiling Amount shall be applicable to indemnification pursuant to Section 7.3(iii) or Section 7.3(iv) or with respect the representations and warranties of Buyer set forth in Section 4.6. (c) The amount of indemnity claim hereunder shall be reduced by the amount of any tax benefit actually realized by the Buyer Indemnified Parties or the Seller Indemnified Parties as a result of such claim. (d) The amount of any indemnity claim hereunder shall be reduced by the amount of any proceeds of insurance actually received by the Buyer Indemnified Parties or Seller Indemnified Parties, as the case may be, in connection with such claim; provided, however, the foregoing shall not bar any insurance company that has made any payment to a Buyer Indemnified Party or Seller Indemnified Party from pursuing its lawful rights to subrogation. (e) Except as set forth in Section 9.6(b), the parties agree that the indemnification provisions in this Article 7 shall be the exclusive remedy of the parties with respect to any claims between the parties concerning this Agreement and the other Transaction Agreements.

  • Limitation on Indemnification Notwithstanding any other provision herein to the contrary, the Company shall not be obligated pursuant to this Agreement:

  • Exculpation and Indemnification (a) No Member, Manager, Officer, employee or agent of the Company and no affiliate, stockholder, officer, director, employee or agent of the Member (collectively, the “Covered Persons”) shall be liable to the Company or any other person or entity who is a party to or is otherwise bound by this Agreement for any loss, damage or claim incurred by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that a Covered Person shall be liable for any such loss, damage or claim incurred by reason of such Covered Person’s gross negligence or willful misconduct. (b) To the fullest extent permitted by applicable law, a Covered Person shall be entitled to indemnification from the Company for any loss, damage or claim incurred by such Covered Person by reason of any act or omission performed or omitted by such Covered Person in good faith on behalf of the Company and in a manner reasonably believed to be within the scope of the authority conferred on such Covered Person by this Agreement, except that no Covered Person shall be entitled to be indemnified in respect of any loss, damage or claim incurred by such Covered Person by reason of such Covered Person’s gross negligence or willful misconduct with respect to such acts or omissions; provided, however, that any indemnity under this Section shall be provided out of and to the extent of Company assets only, and the Member shall have no personal liability on account thereof. (c) To the fullest extent permitted by applicable law, expenses (including reasonable legal fees) incurred by a Covered Person in defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Company prior to the final disposition of such claim, demand, action, suit or proceeding upon receipt by the Company of an undertaking by or on behalf of the Covered Person to repay such amount if it shall be determined that the Covered Person is not entitled to be indemnified as authorized in this Section. (d) A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by the person or entity as to matters the Covered Person reasonably believes are within such other person or entity’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of the assets, liabilities, or any other facts pertinent to the existence and amount of assets from which distributions to the Member might properly be paid. (e) The provisions of this Agreement, to the extent that they restrict or eliminate the duties and liabilities of a Covered Person otherwise existing at law or in equity, are agreed by the Member to replace such other duties and liabilities of such Covered Person. (f) The foregoing provisions of this Section shall survive any termination of this Agreement.

  • Limitation of Liability and Indemnification State Street shall be held to a standard of reasonable care in carrying out its duties under this Agreement. State Street shall be responsible for the performance of only such duties as are set forth in this Agreement and, except as otherwise provided under Section XVI, shall have no responsibility for the actions or activities of any other party, including other service providers. State Street shall have no liability for any error of judgment or mistake of law or for any loss or damage resulting from the performance or nonperformance of its duties hereunder unless caused by or resulting from the negligence, reckless misconduct, willful malfeasance or lack of good faith of State Street, its officers or employees and, in such event, such liability will be subject to the limitations set forth in Section XIII herein. STATE STREET SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES) IN ANY WAY DUE TO THE TRUST’S USE OF THE SERVICES DESCRIBED HEREIN OR THE PERFORMANCE OF OR FAILURE TO PERFORM STATE STREET’S OBLIGATIONS UNDER THIS AGREEMENT. This disclaimer applies without limitation to claims regardless of the form of action, whether in contract (including negligence), strict liability, or otherwise and regardless of whether such damages are foreseeable. The Trust, or, if applicable, the relevant Portfolio, will indemnify and hold harmless State Street and its stockholders, directors, officers, employees, agents, and representatives (collectively, the “Trust Indemnified Persons”) for, and will pay to the Trust Indemnified Persons the amount of, any actual and direct damages, whether or not involving a third-party claim (collectively, the “Damages”), arising from or in connection with (i) any act or omission by State Street (or any of its affiliates) pursuant to this Agreement which does not constitute negligence, reckless misconduct, willful malfeasance or lack of good faith in fulfilling the terms and obligations of this Agreement, (ii) any act or omission by the Trust (or any of its affiliates) which constitutes a breach of any representation, warranty, term, or obligation contained in this Agreement, or (iii) any act or omission by the Trust (or any of its affiliates) which constitutes negligence, reckless misconduct, willful malfeasance, or lack of good faith in fulfilling the terms and obligations of this Agreement. The remedies provided in this paragraph are not exclusive of or limit any other remedies that may be available to State Street or any other Trust Indemnified Person. State Street will indemnify and hold harmless the Trust, and its respective shareholders, trustees, directors, officers, agents, and representatives (collectively, the “State Street Indemnified Persons”) for, and will pay to the State Street Indemnified Persons the amount of, any Damages, arising from or in connection with (i) any act or omission by State Street (or any of its affiliates) which constitutes a breach of any representation, warranty, term, or obligation contained in this Agreement or (ii) any act or omission by State Street (or any of its affiliates) which constitutes negligence, reckless misconduct, willful malfeasance, or lack of good faith in fulfilling the terms and obligations of this Agreement; provided, however, that State Street shall not be required to provide indemnification for damages arising from errors caused by inaccurate prices received from independent pricing services and reasonably relied upon by State Street. In the event that State Street is required to provide indemnification under this Section XII, its liability shall be limited as described under Section XIII below. The remedies provided in this paragraph are not exclusive of or limit any other remedies that may be available to the Trust or any other State Street Indemnified Person. The indemnification and limitation of liability contained herein shall survive the termination of this Agreement.

  • Limitation of Liability; Indemnification (a) Funds Management shall not be liable for any error of judgment or mistake of law or for any loss suffered by the Trust in connection with the performance of its obligations and duties under this Agreement, except a loss resulting from Funds Management’s willful misfeasance, bad faith, or negligence in the performance of its obligations and duties or that of its agents or sub-administrators, or by reason of its or their reckless disregard thereof. Any person, even though also an officer, director, employee or agent of Funds Management, shall be deemed, when rendering services to the Trust or acting on any business of the Trust (other than services or business in connection with Funds Management’s duties as Administrator hereunder), to be acting solely for the Trust and not as an officer, director, employee, or agent or one under the control or discretion of Funds Management even though paid by it. (b) The Trust, on behalf of each Fund, will indemnify Funds Management against and hold it harmless from any and all losses, claims, damages, liabilities, or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action, or suit relating to the particular Fund and not resulting from willful misfeasance, bad faith, or negligence of Funds Management or its agents or sub-administrators in the performance of their obligations and duties hereunder, or by reason of its or their reckless disregard thereof. Funds Management will not confess any claim or settle or make any compromise in any instance in which the Trust will be asked to provide indemnification, except with the Trust’s prior written consent. Any amounts payable by the Trust under this Subparagraph shall be satisfied only against the assets of the Fund involved in the claim, demand, action, or suit and not against the assets of any other Fund. (c) Funds Management will indemnify the Trust against and hold it harmless from any and all losses, claims, damages, liabilities, or expenses (including reasonable counsel fees and expenses) resulting from any claim, demand, action, or suit against the Trust or any Fund that resulted from a failure of Funds Management or its agents to act in accordance with the standard of care set forth in Subparagraph (a) above; provided that such loss, claim, damage, liability or expense did not result primarily from willful misfeasance, bad faith, or negligence of the Trust or its agents (other than Funds Management or agents of Funds Management) in the performance of their obligations and duties, or by reason of its or their reckless disregard thereof. The Trust will not confess any claim or settle or make any compromise in any instance in which Funds Management will be asked to provide indemnification, except with Funds Management’s prior written consent.

  • Determination of Right to Indemnification To the extent that Indemnitee shall have been successful on the merits or otherwise in defense of any Indemnifiable Claim or any portion thereof or in defense of any issue or matter therein, including, without limitation, dismissal without prejudice, Indemnitee shall be indemnified against all Indemnifiable Losses relating to, arising out of or resulting from such Indemnifiable Claim in accordance with Section 2 and no Standard of Conduct Determination (as defined in Section 7(b)) shall be required. To the extent that the provisions of Section 7(a) are inapplicable to an Indemnifiable Claim that shall have been finally disposed of, any determination of whether Indemnitee has satisfied the applicable Standard of Conduct (a “Standard of Conduct Determination”) shall be made as follows: (i) if a Change in Control shall not have occurred, or if a Change in Control shall have occurred but Indemnitee shall have requested that the Standard of Conduct Determination be made pursuant to this clause (i), (A) by a majority vote of the Disinterested Directors, even if less than a quorum of the Board, (B) if such Disinterested Directors so direct, by a majority vote of a committee of Disinterested Directors designated by a majority vote of all Disinterested Directors, or (C) if there are no such Disinterested Directors, or if a majority of the Disinterested Directors so direct, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee; and (ii) if a Change in Control shall have occurred and Indemnitee shall not have requested that the Standard of Conduct Determination be made pursuant to clause (i) above, by Independent Counsel in a written opinion addressed to the Board, a copy of which shall be delivered to Indemnitee. If (i) Indemnitee shall be entitled to indemnification hereunder against any Indemnifiable Losses pursuant to Section 7(a), (ii) no determination of whether Indemnitee has satisfied any applicable standard of conduct under Delaware law is a legally required condition precedent to indemnification of Indemnitee hereunder against any Indemnifiable Losses, or (iii) Indemnitee has been determined or deemed pursuant to Section 7(b) to have satisfied the applicable Standard of Conduct, then the Company shall pay to Indemnitee, within five business days after the later of (x) the Notification Date in respect of the Indemnifiable Claim or portion thereof to which such Indemnifiable Losses are related, out of which such Indemnifiable Losses arose or from which such Indemnifiable Losses resulted, and (y) the earliest date on which the applicable criterion specified in clause (i), (ii) or (iii) above shall have been satisfied, an amount equal to the amount of such Indemnifiable Losses. Nothing herein is intended to mean or imply that the Company is intending to use Section 145(f) of the Delaware General Corporation Law to dispense with a requirement that Indemnitee meet the applicable Standard of Conduct where it is otherwise required by such statute. If a Standard of Conduct Determination is required to be, but has not been, made by Independent Counsel pursuant to Section 7(b)(i), the Independent Counsel shall be selected by the Board or a committee of the Board, and the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected. If a Standard of Conduct Determination is required to be, or to have been, made by Independent Counsel pursuant to Section 7(b)(ii), the Independent Counsel shall be selected by Indemnitee, and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected. In either case, Indemnitee or the Company, as applicable, may, within five business days after receiving written notice of selection from the other, deliver to the other a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not satisfy the criteria set forth in the definition of “Independent Counsel” in Section 1(h), and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the Person so selected shall act as Independent Counsel. If such written objection is properly and timely made and substantiated, (i) the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court has determined that such objection is without merit and (ii) the non-objecting party may, at its option, select an alternative Independent Counsel and give written notice to the other party advising such other party of the identity of the alternative Independent Counsel so selected, in which case the provisions of the two immediately preceding sentences and clause (i) of this sentence shall apply to such subsequent selection and notice. If applicable, the provisions of clause (ii) of the immediately preceding sentence shall apply to successive alternative selections. If no Independent Counsel that is permitted under the foregoing provisions of this Section 7(d) to make the Standard of Conduct Determination shall have been selected within 30 calendar days after the Company gives its initial notice pursuant to the first sentence of this Section 7(d) or Indemnitee gives its initial notice pursuant to the second sentence of this Section 7(d), as the case may be, either the Company or Indemnitee may petition the Court of Chancery of the State of Delaware for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person or firm selected by the Court or by such other person as the Court shall designate, and the person or firm with respect to whom all objections are so resolved or the person or firm so appointed will act as Independent Counsel. In all events, the Company shall pay all of the actual and reasonable fees and expenses of the Independent Counsel incurred in connection with the Independent Counsel’s determination pursuant to Section 7(b).

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