Obligation to Indemnify (a) Subject to the expiration of the representations and warranties of the parties as provided in Article IX and the limitations set forth in this Article X, VFL agrees to indemnify, defend and hold harmless Purchaser and its directors, officers, employees, Affiliates and assigns from and against all claims, losses, liabilities, damages, deficiencies, costs or expenses, penalties and reasonable outside attorneys' fees and disbursements (collectively, "Losses," and individually a "Loss"), asserted against, imposed upon or incurred by them, directly or indirectly, by reason of or arising out of or in connection with any misrepresentation, breach of or failure to perform any representation, warranty, covenant, undertaking or agreement of VFL in this Agreement or any Extra Contractual Obligations arising from acts, errors or omissions by VFL or any of its officers, employees, agents or representatives (other than Purchaser and administrators, contractors or other representatives or agents selected by Purchaser); provided, however, that Purchaser (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification under this Section 10.01(a) in respect of representations and warranties in this Agreement only when the aggregate amount of all such Losses exceeds five hundred thousand dollars ($500,000.00) (the "Basket Amount"), in which case Purchaser (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification for Losses only in excess of the Basket Amount; provided further, that the Purchaser's entitlement to indemnification for claims arising under the fourth sentence of Section 3.11(c), Section 3.16, Section 3.24, Section 10.06 and Section 10.07 shall not be subject to the Basket Amount. VFL shall have no liability under this Section 10.01 if, with respect to any misrepresentation, breach or failure to perform, following the date of this Agreement and at or prior to Closing: (i) VFL provides Purchaser with written notice (which may be in the form of an exhibit to the certificate contemplated by Section 6.01) of such misrepresentation, breach or failure to perform; (ii) such notice expressly acknowledges that such misrepresentation, breach or failure to perform has caused the condition specified in the first sentence of Section 6.01 not to be satisfied and that, as a result, Purchaser has the right not to proceed to Closing; (iii) such misrepresentation, breach or failure to perform has, in fact, caused the condition specified in the first sentence of Section 6.01 not to be satisfied, and as a result, Purchaser has the right not to proceed to Closing; and (iv) Purchaser elects to waive the condition specified in the first sentence of Section 6.01 and proceed to Closing. The maximum amount for which VFL shall be liable under this Article X, other than indemnification for claims arising under the fourth sentence of Section 3.11(c), Section 3.16, Section 3.24, Section 10.06 and Section 10.07 which shall not be subject to such limitation, shall not exceed in the aggregate 100% of the Purchase Price ("Maximum Indemnification Obligation"). Required payments by any indemnifying party pursuant to this Article X shall be limited to the amount of any Loss that remains after deducting therefrom any benefit associated with the breach or occurrence constituting or giving rise to the Loss, including but not limited to: (i) any tax benefit to any indemnified party, (ii) any insurance or reinsurance proceeds recoverable by any indemnified party, and (iii) any indemnity, contribution or other similar payment recoverable by any indemnified party from any third party, in each case with respect to such Loss. The indemnified party shall use commercially reasonable efforts to collect all such insurance proceeds and indemnity, contribution and other similar payments. With respect to any breach of the representations set forth in Sections 3.09 and 3.11, "Losses" to be indemnified by VFL hereunder shall not include any losses deemed to be incurred by Purchaser as a result of any inability to market the Insurance Contracts in any jurisdiction. Further, in no event shall there be included in the calculation of any indemnified Loss any amount in respect of potential revenues, fees or other benefits incident to or potentially arising from any insurance or annuity policies or contracts other than the Insurance Contracts. With respect to any breach of the representations set forth in Section 3.24, Losses to be indemnified by VFL hereunder shall be calculated, as of July 1 of each year from 2003 to 2012, as the difference between the amount of fees and other revenue that would have been payable to Purchaser during the immediately preceding twelve month period under the Participation, Distribution and Service Related Agreements had the representations made by VFL pursuant to Section 3.24 been accurate and the amount of fees and other revenue actually payable to Purchaser under said agreements during such twelve month period (for each such twelve month period such difference shall hereinafter be referred to as the "Annual Revenue Share Losses") and the Annual Revenue Share Losses for each such twelve month period shall be paid by VFL to Purchaser not later than 30 days following such calculation; provided, however, that in no event will VFL be responsible (by indemnification or otherwise) for the Annual Revenue Share Losses for any twelve month period under any particular Participation, Distribution and Service Related Agreement that (i) relate to any time period more than ten years after the Effective Date; (ii) are the result of changes (including any terminations) occurring in accordance with the terms of any particular Participation, Distribution and Service Related Agreement in effect as of the execution of this Agreement, as modified pursuant to clause (iii) or (iv) of this sentence; (iii) are the result of changes (including any terminations) made by the Mutual Fund Payor in accordance with the terms of any such Participation, Distribution and Service Related Agreement; or (iv) are the result of changes (including any terminations) made by VFL or the Mutual Fund Payor and requested or approved by Purchaser; and provided, further, in the case of terminations effected under clauses (ii) or (iii) of this sentence, VFL shall be liable for Annual Revenue Share Losses that result from terminations that constitute a breach of the representation made in the last sentence of Section 3.24. Purchaser's right to indemnification for any breach of Section 3.16 as a result of the failure, prior to the Closing, (a) to comply with all tax withholding and information reporting requirements under the Code (and applicable regulations), or (b) of any Insurance Contract to comply with all requirements of the Code, as specified in Section 3.16, shall not be affected by Purchaser's knowledge of any such failure, whether as a result of Purchaser's due diligence process, any disclosure by VFL or otherwise. With regard to those agreements or arrangements regarding fees that are marked with an asterisk in Schedule 3.24, VFL agrees to indemnify Purchaser for any Losses arising from the termination of any such agreement or arrangement on less than 30 days' prior written notice, with such Losses being measured as revenues that are not payable for the 30 days (or applicable portion thereof) following the date of such written notice (if any). (b) Subject to the expiration of the representations and warranties of the parties as provided in Article IX and the limitations set forth in this Article X, Purchaser agrees to indemnify, defend and hold harmless VFL and its directors, officers, employees, Affiliates and assigns from and against all Losses, asserted against, imposed upon or incurred by them, directly or indirectly, by reason of or arising out of or in connection with any misrepresentation, breach of or failure to perform any representation, warranty, covenant, undertaking or agreement of Purchaser in this Agreement or any Extra Contractual Obligations arising from acts, errors or omissions by Purchaser or any of its officers, employees, agents or representatives; provided, however, that VFL (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification under this Section 10.01(b) in respect of representations and warranties in this Agreement only when the aggregate amount of all such Losses exceeds the Basket Amount, in which case VFL (and its directors, officers, employees, Affiliates and assigns) shall be entitled to indemnification for Losses only in excess of the Basket Amount. Purchaser shall have no liability under this Section 10.01 if, with respect to any misrepresentation , breach or failure to perform, following the date of this Agreement and at or prior to Closing, Purchaser provides VFL with written notice (which may be in the form of an exhibit to the certificate contemplated by Section 7.01) of such misrepresentation, breach or failure to perform. In any event, the maximum amount for which Purchaser shall be liable under this Article X shall not exceed in the aggregate the Maximum Indemnification Obligation. Required payments by any indemnifying party pursuant to this Article X shall be limited to the amount of any Loss that remains after deducting therefrom any benefit associated with the breach or occurrence constituting or giving rise to the Loss, including but not limited to: (i) any tax benefit to any indemnified party, (ii) any insurance or reinsurance proceeds recoverable by any indemnified party, and (iii) any indemnity, contribution or other similar payment recoverable by any indemnified party from any third party, in each case with respect to such Loss. The indemnified party shall use commercially reasonable efforts to collect all such insurance proceeds and indemnity, contribution and other similar payments. Further, in no event shall there be included in the calculation of any indemnified Loss any amount in respect of potential revenues, fees or other benefits incident to or potentially arising from any insurance or annuity policies or contracts other than the Insurance Contracts. (c) The same set of facts and circumstances may give rise to a claim for indemnification under this Article X as a claim arising from both a representation or warranty and from an Extra Contractual Obligation. The fact that such a claim for indemnification may be barred by the survival provisions of Article IX as arising from a representation or warranty, shall not bar VFL or Purchaser from bringing such a claim under this Article X as arising from an Extra Contractual Obligation.
Indemnification of Indemnitee Subject to the limitations set forth herein and particularly in Section 6 hereof, the Corporation shall indemnify Indemnitee as follows: (a) The Corporation shall, with respect to any Proceeding (as hereinafter defined), indemnify Indemnitee to the fullest extent permitted by applicable law or as such law may from time to time be amended (but, in the case of any such amendment, only to the extent such amendment permits the Corporation to provide broader indemnification rights than the law permitted the Corporation to provide before such amendment). The right to indemnification conferred herein shall be presumed to have been relied upon by Indemnitee in serving or continuing to serve the Corporation as an Agent and shall be enforceable as a contract right. Without in any way diminishing the scope of the indemnification provided by this Section 2(a), the rights of indemnification of Indemnitee shall include but shall not be limited to those rights hereinafter set forth. (b) The Corporation shall indemnify Indemnitee if Indemnitee is or was a party or is threatened to be made a party to any Proceeding (other than an action by or in the right of the Corporation) by reason of the fact that Indemnitee is or was an Agent of the Corporation, or any subsidiary of the Corporation, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an Agent of another corporation, partnership, joint venture, trust or other enterprise, against Expenses (as hereinafter defined) or Liabilities (as hereinafter defined), actually and reasonably incurred by Indemnitee in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe Indemnitee’s conduct was unlawful. (c) The Corporation shall indemnify Indemnitee if Indemnitee was or is a party or is threatened to be made a party to any Proceeding by or in the right of the Corporation or any subsidiary of the Corporation to procure a judgment in its favor by reason of the fact that Indemnitee is or was an Agent of the Corporation, or any subsidiary of the Corporation, or by reason of the fact that Indemnitee is or was serving at the request of the Corporation as an Agent of another corporation, partnership, joint venture, trust or other enterprise, against Expenses and, to the fullest extent permitted by law, Liabilities if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Corporation, except that no indemnification shall be made in respect of any claim, issue or matter as to which Indemnitee shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery of the State of Delaware or such other court shall deem proper.
Termination of Indemnification The obligations to indemnify and hold harmless any party, (i) pursuant to Section 8.01(a)(i) or 8.02(i), shall terminate when the applicable representation or warranty terminates pursuant to Section 8.06 and (ii) pursuant to the other clauses of Sections 8.01 and 8.02 shall survive the Closing indefinitely; provided, however, that such obligations to indemnify and hold harmless shall not terminate with respect to any item as to which the person to be indemnified shall have, before the expiration of the applicable period, previously made a claim by delivering a notice of such claim (stating in reasonable detail the basis of such claim) pursuant to Section 8.05 to the party to be providing the indemnification.
Indemnification of Indemnitees From and after Bank Closing and subject to the limitations set forth in this Section and Section 12.6 and compliance by the Indemnitees with Section 12.2, the Receiver agrees to indemnify and hold harmless the Indemnitees against any and all costs, losses, liabilities, expenses (including attorneys' fees) incurred prior to the assumption of defense by the Receiver pursuant to paragraph (d) of Section 12.2, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with claims against any Indemnitee based on liabilities of the Failed Bank that are not assumed by the Assuming Institution pursuant to this Agreement or subsequent to the execution hereof by the Assuming Institution or any Subsidiary or Affiliate of the Assuming Institution for which indemnification is provided hereunder in (a) of this Section 12.1, subject to certain exclusions as provided in (b) of this Section 12.1: (1) claims based on the rights of any shareholder or former shareholder as such of
Indemnification of ICANN (a) Registry Operator shall indemnify and defend ICANN and its directors, officers, employees, and agents (collectively, “Indemnitees”) from and against any and all third-‐party claims, damages, liabilities, costs, and expenses, including reasonable legal fees and expenses, arising out of or relating to intellectual property ownership rights with respect to the TLD, the delegation of the TLD to Registry Operator, Registry Operator’s operation of the registry for the TLD or Registry Operator’s provision of Registry Services, provided that Registry Operator shall not be obligated to indemnify or defend any Indemnitee to the extent the claim, damage, liability, cost or expense arose: (i) due to the actions or omissions of ICANN, its subcontractors, panelists or evaluators specifically related to and occurring during the registry TLD application process (other than actions or omissions requested by or for the benefit of Registry Operator), or (ii) due to a breach by ICANN of any obligation contained in this Agreement or any willful misconduct by ICANN. This Section shall not be deemed to require Registry Operator to reimburse or otherwise indemnify ICANN for costs associated with the negotiation or execution of this Agreement, or with monitoring or management of the parties’ respective obligations hereunder. Further, this Section shall not apply to any request for attorney’s fees in connection with any litigation or arbitration between or among the parties, which shall be governed by Article 5 or otherwise awarded by a court of competent jurisdiction or arbitrator. (b) For any claims by ICANN for indemnification whereby multiple registry operators (including Registry Operator) have engaged in the same actions or omissions that gave rise to the claim, Registry Operator’s aggregate liability to indemnify ICANN with respect to such claim shall be limited to a percentage of ICANN’s total claim, calculated by dividing the number of total domain names under registration with Registry Operator within the TLD (which names under registration shall be calculated consistently with Article 6 hereof for any applicable quarter) by the total number of domain names under registration within all top level domains for which the registry operators thereof are engaging in the same acts or omissions giving rise to such claim. For the purposes of reducing Registry Operator’s liability under Section 7.1(a) pursuant to this Section 7.1(b), Registry Operator shall have the burden of identifying the other registry operators that are engaged in the same actions or omissions that gave rise to the claim, and demonstrating, to ICANN’s reasonable satisfaction, such other registry operators’ culpability for such actions or omissions. For the avoidance of doubt, in the event that a registry operator is engaged in the same acts or omissions giving rise to the claims, but such registry operator(s) do not have the same or similar indemnification obligations to ICANN as set forth in Section 7.1(a) above, the number of domains under management by such registry operator(s) shall nonetheless be included in the calculation in the preceding sentence.
Agreement to Indemnify (a) In the event Indemnitee was, is or becomes a party to or witness or other participant in, or is threatened to be made a party to or witness or other participant in, a Proceeding by reason of (or arising in part out of) an Indemnifiable Event, the Company shall indemnify Indemnitee to the fullest extent permitted by law, as soon as practicable but in any event no later than thirty (30) days after written demand is presented to the Company, against any and all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties or amounts paid in settlement) of such Proceeding and any federal, state, local or foreign taxes imposed on the Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, including the creation of the Trust pursuant to Section 4 hereof. Notwithstanding anything in this Agreement to the contrary and except as provided in Section 5, Indemnitee shall not be entitled to indemnification pursuant to this Agreement in connection with any Proceeding initiated by Indemnitee against the Company or any director or officer of the Company unless the Company has joined in or consented to the initiation of such Proceeding. If so requested by Indemnitee, the Company shall advance, within ten (10) business days of such request, any and all Expenses to Indemnitee (an "Expense Advance"); provided, however, that such Expenses shall be advanced only upon delivery to the Company of an undertaking by or on behalf of the Indemnitee to repay such amount if it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company; provided further, that the Company shall make such advances only to the extent permitted by law. (b) Notwithstanding the foregoing, (i) the obligations of the Company under Section 2(a) shall be subject to the condition that the Reviewing Party shall not have determined (in a written opinion, in any case in which the special, independent counsel referred to in Section 3 hereof is involved) that Indemnitee would not be permitted to be indemnified under applicable law, and (ii) the obligation of the Company to make an Expense Advance pursuant to Section 2(a) shall be subject to the condition that, if, when and to the extent that the Reviewing Party determines that Indemnitee would not be permitted to be so indemnified under applicable law, the Company shall be entitled to be reimbursed by Indemnitee (who hereby agrees to reimburse the Company) for all such amounts theretofore paid; provided, however, that if Indemnitee has commenced legal proceedings in a court of competent jurisdiction to secure a determination that Indemnitee should be indemnified under applicable law, any determination made by the Reviewing Party that Indemnitee would not be permitted to be indemnified under applicable law shall not be binding and Indemnitee shall not be required to reimburse the Company for any Expense Advance until a final judicial determination is made with respect thereto (as to which all rights of appeal therefrom have been exhausted or have lapsed). Indemnitee's obligation to reimburse the Company for Expense Advances shall be unsecured and no interest shall be charged thereon, to the extent permitted by law. If there has not been a Change in Control, the Reviewing Party shall be selected by the Board of Directors, and if there has been such a Change in Control, other than a Change in Control which has been approved by a majority of the Company's Board of Directors who were directors immediately prior to such Change in Control, the Reviewing Party shall be the special, independent counsel referred to in Section 3 hereof. If there has been no determination by the Reviewing Party or if the Reviewing Party determines that Indemnitee substantively would not be permitted to be indemnified in whole or in part under applicable law, Indemnitee shall have the right to commence litigation in any court in the States of California or Delaware having subject matter jurisdiction thereof and in which venue is proper seeking an initial determination by the court or challenging any such determination by the Reviewing Party or any aspect thereof, and the Company 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 the Company and Indemnitee.
Authorization of Indemnification Any indemnification under this Article VII (unless ordered by a court) shall be made by the Corporation only as authorized in the specific case upon a determination that indemnification of the director or officer is proper in the circumstances because such person has met the applicable standard of conduct set forth in Section 7.1 or Section 7.2, as the case may be. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (i) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, or (iii) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion or (iv) by the stockholders. Such determination shall be made, with respect to former directors and officers, by any person or persons having the authority to act on the matter on behalf of the Corporation. To the extent, however, that a present or former director or officer of the Corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding set forth in Section 7.1 or Section 7.2 or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith, without the necessity of authorization in the specific case.
Right of Indemnitee to Indemnification Upon Application; Procedure Upon Application Any indemnification claim under this Agreement, other than pursuant to Section 7 hereof, shall be made no later than 30 days after receipt by the Corporation of the written request of Indemnitee, accompanied by substantiating documentation, unless a determination is made within said 30-day period that Indemnitee has not met the relevant standards for indemnification set forth in Section 3 hereof by (a) the Board of Directors by a majority vote of a quorum consisting of directors who are not or were not parties to such Proceeding, (b) a committee of the Board of Directors designated by majority vote of the Board of Directors, even though less than a quorum, (c) if there are no such directors, or if such directors so direct, independent legal counsel in a written opinion or (d) the stockholders. The right to indemnification or advances as provided by this Agreement shall be enforceable by Indemnitee in any court of competent jurisdiction. The burden of proving that indemnification is not appropriate shall be on the Corporation. Neither the failure of the Corporation (including its Board of Directors, any committee thereof, independent legal counsel or its stockholders) to have made a determination prior to the commencement of such action that indemnification is proper in the circumstances because Indemnitee has met the applicable standards of conduct, nor an actual determination by the Corporation (including its Board of Directors, any committee thereof, independent legal counsel or its stockholders) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
Indemnification and Exculpation of Indemnitees (a) The Partnership shall indemnify an Indemnitee from and against any and all losses, claims, damages, liabilities, joint or several, expenses (including reasonable legal fees and expenses), judgments, fines, settlements, and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative, that relate to the operations of the Partnership as set forth in this Agreement in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, unless it is established that: (i) the act or omission of the Indemnitee was material to the matter giving rise to the proceeding and either was committed in bad faith or was the result of active and deliberate dishonesty; (ii) the Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal proceeding, the Indemnitee had reasonable cause to believe that the act or omission was unlawful. Any indemnification pursuant to this Section 6.3 shall be made only out of the assets of the Partnership. (b) The Partnership shall reimburse an Indemnitee for reasonable expenses incurred by an Indemnitee who is a party to a proceeding in advance of the final disposition of the proceeding upon receipt by the Partnership of (i) a written affirmation by the Indemnitee of the Indemnitee’s good faith belief that the standard of conduct necessary for indemnification by the Partnership as authorized in this Section 6.3 has been met, and (ii) a written undertaking by or on behalf of the Indemnitee to repay the amount if it shall ultimately be determined that the standard of conduct has not been met. (c) The indemnification provided by this Section 6.3 shall be in addition to any other rights to which an Indemnitee or any other Person may be entitled under any agreement, pursuant to any vote of the Partners, as a matter of law or otherwise, and shall continue as to an Indemnitee who has ceased to serve in such capacity. (d) The Partnership may purchase and maintain insurance, on behalf of the Indemnitees and such other Persons as the General Partner shall determine, against any liability that may be asserted against or expenses that may be incurred by such Person in connection with the Partnership’s activities, regardless of whether the Partnership would have the power to indemnify such Person against such liability under the provisions of this Agreement. (e) For purposes of this Section 6.3, the Partnership shall be deemed to have requested an Indemnitee to serve as fiduciary of an employee benefit plan whenever the performance by it of its duties to the Partnership also imposes duties on, or otherwise involves services by, it to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute fines within the meaning of this Section 6.3; and actions taken or omitted by the Indemnitee with respect to an employee benefit plan in the performance of its duties for a purpose reasonably believed by it to be in the interest of the participants and beneficiaries of the plan shall be deemed to be for a purpose which is not opposed to the best interests of the Partnership. (f) In no event may an Indemnitee subject the Limited Partners to personal liability by reason of the indemnification provisions set forth in this Agreement. (g) An Indemnitee shall not be denied indemnification in whole or in part under this Section 6.3 because the Indemnitee had an interest in the transaction with respect to which the indemnification applies if the transaction was otherwise permitted by the terms of this Agreement. (h) The provisions of this Section 6.3 are for the benefit of the Indemnitees, their heirs, successors, assigns and administrators and shall not be deemed to create any rights for the benefit of any other Persons. (i) Notwithstanding the foregoing, the Partnership may not indemnify or hold harmless an Indemnitee for any liability or loss unless all of the following conditions are met: (i) the Indemnitee has determined, in good faith, that the course of conduct that caused the loss or liability was in the best interests of the Partnership; (ii) the Indemnitee was acting on behalf of or performing services for the Partnership; (iii) the liability or loss was not the result of (A) negligence or misconduct, in the case that the Indemnitee is a director of the General Partner (other than an Independent Director), the Advisor or an Affiliate of the Advisor or (B) gross negligence or willful misconduct, in the case that the Indemnitee is an Independent Director; and (iv) the indemnification or agreement to hold harmless is recoverable only out of net assets of the Partnership. In addition, the Partnership shall not provide indemnification for any loss, liability or expense arising from or out of an alleged violation of federal or state securities laws by such party unless one or more of the following conditions are met: (i) there has been a successful adjudication on the merits of each count involving alleged material securities law violations as to the Indemnitee; (ii) such claims have been dismissed with prejudice on the merits by a court of competent jurisdiction as to the Indemnitee; or (iii) a court of competent jurisdiction approves a settlement of the claims against the Indemnitee and finds that indemnification of the settlement and the related costs should be made, and the court considering the request for indemnification has been advised of the position of the Commission and of the published position of any state securities regulatory authority in which Securities were offered or sold as to indemnification for violations of securities laws.
Continuation of Indemnification All agreements and obligations of the Company contained herein shall continue during the period that the Indemnitee is a director or officer of the Company (or is or was serving at the request of the Company as an agent of another enterprise, foreign or domestic) and shall continue thereafter so long as the Indemnitee shall be subject to any possible Proceeding by reason of the fact that the Indemnitee was a director or officer of the Company or serving in any other capacity referred to in this Paragraph 10.
