Indemnification for Directed Share Program. The Company agrees to indemnify and hold harmless ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and its affiliates and each person, if any, who controls ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities"), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to participants in connection with the Directed Share Program, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) related to, arising out of, or in connection with the failure of any participant to pay for and accept delivery of Directed Shares that the participant has agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program; provided, however, that the Company and Phoenix shall not be liable for any loss, claim, damage, liability or expense under this Section 7(j) to the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or expense resulted directly from any acts or failures to act undertaken or omitted to be taken by such Underwriter through its bad faith or willful misconduct; and provided, further, that with respect to any preliminary prospectus, the foregoing indemnity agreement shall not inure to the benefit of any Underwriter from whom the person asserting any loss, claim, damage, liability or expense purchased Shares, or any person controlling such Underwriter, if copies of the Prospectus were timely delivered to the Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The indemnity agreement set forth in this Section 7(j) shall be in addition to any liabilities that the Company may otherwise have.
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Indemnification for Directed Share Program. The Company agrees to indemnify and hold harmless ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and Partners, its affiliates directors, officers and each person, if any, who controls ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or its affiliates Partners within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("▇▇▇“▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Partners Entities"”), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) insofar as such losses, claims, damages and liabilities (or actions in respect thereof) arise out of or are based upon (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any the prospectus wrapper material prepared by or with the consent of the Company for distribution to participants in foreign jurisdictions in connection with the Directed Share ProgramProgram attached to the Prospectus or any preliminary prospectus, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein statement therein, when considered in conjunction with the Prospectus or any applicable preliminary prospectus, not misleading; (ii) related to, arising out of, or in connection with the failure of any participant Participant to pay for and accept delivery of Directed Shares that the participant has agreed shares which, immediately following the effectiveness of the Registration Statement, were subject to a properly confirmed agreement to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program; provided, howeverprovided that, that the Company and Phoenix shall not be liable responsible under this subparagraph (iii) for any losslosses, claim, damage, liability damages or expense under this Section 7(jliabilities (or expenses relating thereto) that are finally judicially determined to have resulted from the extent that a court of competent jurisdiction shall have determined by a final judgment that such loss, claim, damage, liability or expense resulted directly from any acts or failures to act undertaken or omitted to be taken by such Underwriter through its bad faith or willful misconduct; and provided, further, that with respect to any preliminary prospectus, the foregoing indemnity agreement shall not inure to the benefit gross negligence of any Underwriter from whom the person asserting any loss, claim, damage, liability or expense purchased Shares, or any person controlling such Underwriter, if copies of the Prospectus were timely delivered to the Underwriter pursuant to Section 2 and a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person, if required by law so to have been delivered, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The indemnity agreement set forth in this Section 7(j) shall be in addition to any liabilities that the Company may otherwise have▇▇▇▇▇▇ ▇▇▇▇▇▇ Partners Entities.
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Indemnification for Directed Share Program. The Company agrees to indemnify and hold harmless FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. and its affiliates and each person, if any, who controls FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Inc. or its affiliates within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act ("FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities"), from and against any and all losses, claims, damages and liabilities (including, without limitation, any legal or other expenses reasonably incurred in connection with defending or investigating any such action or claim) (i) caused by any untrue statement or alleged untrue statement of a material fact contained in any material prepared by or with the consent of the Company for distribution to participants in connection with the Directed Share Program, or caused by any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading; (ii) related to, arising out of, or in connection with caused by the failure of any participant to pay for and accept delivery of Directed Shares that the participant has agreed to purchase; or (iii) related to, arising out of, or in connection with the Directed Share Program; providedProgram other than losses, howeverclaims, damages or liabilities (or expenses relating thereto) that are finally judicially determined to have resulted form the bad faith or gross negligence of FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities. In case any proceeding (including any governmental investigation) shall be instituted involving any FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity in respect of which indemnity may be sought pursuant to Section 7(k), the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity seeking indemnity shall promptly notify the Company in writing and the Company, upon request of the ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity, shall retain counsel reasonably satisfactory to the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity to represent the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity and any other the Company may designate in such proceeding and shall pay the fees and disbursements of such counsel related to such proceeding. In any such proceeding, any FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity unless (i) the Company shall have agreed to the retention of such counsel or (ii) the named parties to any such proceeding (including any impleaded parties) include both the Company and Phoenix the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. The Company shall not, in respect of the legal expenses of the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities in connection with any proceeding or related proceedings the same jurisdiction, be liable for the fees and expenses of more than one separate firm (in addition to any local counsel) for all FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities. Any such firm for the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities shall be designated in writing by FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇. The Company shall not be liable for any losssettlement of any proceeding effected without its written consent, claim, damage, liability but if settled with such consent or expense under this Section 7(j) to the extent that a court of competent jurisdiction shall have determined by if there be a final judgment that such loss, claim, damage, liability or expense resulted directly from any acts or failures to act undertaken or omitted to be taken by such Underwriter through its bad faith or willful misconduct; and provided, further, that with respect to any preliminary prospectusfor the plaintiff, the Company agrees to indemnify the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entities from and against any loss or liability by reason of such settlement or judgment. Notwithstanding the foregoing indemnity agreement sentence, if at any time a FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity shall not inure have requested the Company to reimburse it for fees and expenses of counsel as contemplated by the benefit second and third sentences of this paragraph, the Company agrees that it shall be liable for any settlement of any Underwriter from whom proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by the person asserting any loss, claim, damage, liability or expense purchased Shares, or any person controlling such Underwriter, if copies Company of the Prospectus were timely delivered to the Underwriter pursuant to Section 2 aforesaid request and a copy of the Prospectus (as then amended or supplemented if ii) the Company shall not have furnished any amendments or supplements thereto) was not sent or given by or on behalf reimbursed the FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity in accordance with such request prior to the date of such Underwriter to such personsettlement. The Company shall not, if required by law so to without the prior written consent of FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, effect any settlement of any pending or threatened proceeding in respect of which any FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity is or could have been delivereda party and indemnity could have been sought hereunder by such FleetBoston ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Entity, and if the Prospectus (as so amended or supplemented) would have cured the defect giving rise to such loss, claim, damage, liability or expense. The indemnity agreement set forth in this Section 7(j) shall be in addition to any liabilities that the Company may otherwise have.unless such
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