Common use of Director and Officer Indemnification and Insurance Clause in Contracts

Director and Officer Indemnification and Insurance. (a) For six (6) years after the Effective Time, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation and any successor to, indemnify and hold harmless, to the fullest extent permitted under applicable Law, the present and former officers and directors of the Company or any Company Subsidiary, and any person who becomes an officer or director of the Company or any Company Subsidiary prior to the Effective Time (each, an “Indemnified Person”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and any fees, costs and expenses (including the reasonable attorneys’ fees, expenses and disbursements of counsel of the respective Indemnified Person’s choosing) incurred or arising in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or related to such Indemnified Person’s service as an officer, director, employee, fiduciary or agent of the Company or any Company Subsidiary at or prior to the Effective Time, or services performed by such Indemnified Person, at the request of the Company or any Company Subsidiary, as a fiduciary under any Company Benefit Plan, in each case to the extent they arise out of (i) matters existing or occurring or alleged to have existed or occurred at or prior to the Effective Time, (ii) matters related to this Agreement and the Transactions and (iii) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Person. In the event of any such claim, action, suit or proceeding, (A) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding within 20 Business Days of receipt by the Surviving Corporation from such Indemnified Person of a request therefor, provided that if required under the DGCL, the Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Person is not entitled to indemnification, and (B) Parent and the Surviving Corporation shall use their respective reasonable best efforts to cooperate in the defense of any such matter. (b) For six years after the Effective Time, Parent shall cause to be maintained in effect provisions in the Surviving Corporation’s Certificate of Incorporation and bylaws (or in such documents of any successor to the business of the Surviving Corporation) regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement in the Company Charter and Company Bylaws. (c) Prior to the Effective Time, Parent and Merger Sub shall obtain, and fully pay the premium for, a non-cancelable extension of the Company’s directors’ and officers’ insurance policies and fiduciary liability insurance policies (collectively, the “D&O Insurance”) in place as of the date hereof, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time and on terms and conditions and with retentions and limits of liability that are at least as favorable to the insureds as those contained in the Company’s D&O Insurance policies in effect as of the date hereof; provided that if the aggregate cost for such insurance coverage in respect of any one policy year exceeds 300% of the current annual premium paid by the Company, Parent and Merger Sub shall instead be obligated to obtain D&O Insurance with the best available coverage with respect to matters occurring at or prior to the Effective Time for an aggregate cost in respect of each policy year within such six-year period of 300% of the current annual premium paid by the Company. (d) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (including any matters arising in connection with the Transactions) now existing in favor of any Indemnified Person as provided in any agreement in effect on the date hereof (and made available to Parent prior to the date hereof) between the Company or any Company Subsidiary, on the one hand, and any Indemnified Person, on the other hand, will be assumed by the Surviving Corporation without further action, as of the Effective Time, and will survive the Merger and continue in full force and effect in accordance with their terms. (e) If Parent, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision shall be made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 6.10. (f) The rights of Indemnified Persons to indemnification and insurance pursuant to this Section 6.10 are expressly intended to be for the benefit of, and will be enforceable by, each Indemnified Person, his or her heirs and his or her legal representatives and are a contract right of each Indemnified Person as a third-party beneficiary of this Agreement, and those rights to indemnification and insurance shall exist in addition to and without limiting any and all rights to indemnification granted or arising under the Company Charter, the Company Bylaws or the Surviving Corporation’s Certificate of Incorporation or bylaws, or by operation of law. The provisions of this Section 6.10 shall survive the consummation of the Merger. (g) Notwithstanding anything herein to the contrary, in the event that any claim for indemnification is asserted or made on or prior to the sixth anniversary of the Effective Time, all rights to indemnification in respect of such claim shall continue until the final disposition of such claim.

Director and Officer Indemnification and Insurance. (a) For Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement, indemnification agreement or applicable Law in effect on the date hereof or otherwise, from the Effective Time and until the six (6) years after year anniversary of the Effective Time, New Sailfish shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the Surviving Corporation date of this Agreement or who becomes prior to the Effective Time, a director, officer or employee of any Green Signing Party or of Sailfish or any of its Subsidiaries or who acts as a fiduciary under any Green Benefit Plan or any Sailfish Benefit Plan or is or was serving at the request of any Green Signing Party or of Sailfish or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement, of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved, including as a witness, based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer or employee of any Green Signing Party or of Sailfish or any of its Subsidiaries, a fiduciary under any Green Benefit Plan or of any Sailfish Benefit Plan or is or was serving at the request of any Green Signing Party or of Sailfish or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to or at the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case to the fullest extent permitted under applicable Law (and New Sailfish and Old Sailfish LLC shall, jointly and Parent shall cause severally, pay expenses incurred in advance of the Surviving Corporation and final disposition of any successor to, indemnify and hold harmless, such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the present and former officers and directors of the Company event any such Proceeding is brought or threatened to be brought against any Company Subsidiary, and any person who becomes an officer Indemnified Persons (whether arising before or director of the Company or any Company Subsidiary prior to after the Effective Time (each, an “Indemnified Person”Time), against all claims, losses, liabilities, damages, judgments, inquiries, fines and any fees, costs and expenses (including i) the reasonable attorneys’ fees, expenses and disbursements of Indemnified Persons may retain Sailfish’s regularly engaged legal counsel of the respective Indemnified Person’s choosing) incurred or arising in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or related other counsel satisfactory to such Indemnified Person’s service Persons, and New Sailfish shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as an officerpromptly as statements therefor are received, director, employee, fiduciary or agent of the Company or any Company Subsidiary at or prior to the Effective Time, or services performed by such Indemnified Person, at the request of the Company or any Company Subsidiary, as a fiduciary under any Company Benefit Plan, in each case to the extent they arise out of (i) matters existing or occurring or alleged to have existed or occurred at or prior to the Effective Time, and (ii) matters related to this Agreement and the Transactions and (iii) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Person. In the event of any such claim, action, suit or proceeding, (A) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding within 20 Business Days of receipt by the Surviving Corporation from such Indemnified Person of a request therefor, provided that if required under the DGCL, the Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Person is not entitled to indemnification, and (B) Parent and the Surviving Corporation New Sailfish shall use their respective reasonable its best efforts to cooperate assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 7.10(a), upon learning of any such Proceeding, shall notify New Sailfish (but the Table of Contents failure so to notify shall not relieve a party from any obligations that it may have under this Section 7.10(a) except to the extent such failure materially prejudices such party’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by New Sailfish under this Section 7.10(a), such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by New Sailfish (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for New Sailfish, Sailfish, or the Indemnified Person within the last three years. Notwithstanding the foregoing and except as provided in Section 7.10(c), this Section 7.10(a) shall not require New Sailfish to indemnify, defend or hold harmless, or advance expenses to, any Indemnified Person in connection with any Proceeding (or part thereof) initiated by such Indemnified Person. (b) For six years after New Sailfish shall not amend, repeal or otherwise modify any provision in the Effective TimeOrganizational Documents of New Sailfish, Parent or any of its Subsidiaries in any manner that would affect (or manage New Sailfish or any of its Subsidiaries, with the intent to or in a manner that would affect) adversely the rights thereunder or under the Organizational Documents of New Sailfish or any of its Subsidiaries of any Indemnified Person to indemnification, exculpation and advancement except to the extent required by applicable Law. In addition to the rights provided such persons by applicable Law, New Sailfish shall, and shall cause its Subsidiaries to, fulfill and honor all rights to be maintained indemnification, advancement of expenses, and exculpation from liability existing in effect provisions in the Surviving Corporation’s Certificate of Incorporation and bylaws (or in such documents of any successor to the business favor of the Surviving Corporation) regarding elimination of liability of current or former directors, indemnification of officers, directors officers and employees of Sailfish and advancement of expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement in the Company Charter and Company Bylawsits Subsidiaries. (c) Prior To the fullest extent permitted under applicable Law, New Sailfish shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in this Section 7.10, relating to the Effective Timeenforcement of such Indemnified Person’s rights under this Section 7.10 or under any charter, Parent and Merger Sub shall obtainbylaw or contract regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Notwithstanding any other provision in this Agreement to the contrary, and fully pay the premium for, a non-cancelable extension of the Company’s Sailfish will procure “tail” directors’ and officers’ insurance policies liability and fiduciary liability insurance policies (collectively, the “D&O Insurance”) in place as of the date hereof, in each case for with a claims reporting or discovery period of at least six years from and after the Effective Time placed with insurance companies having the same or better AM Best Financial rating as Sailfish’s current directors’ and on officers’ liability and fiduciary liability insurance companies with terms and conditions providing retentions, limits and with retentions and limits of liability that are at least as other material terms no less favorable to the insureds as those contained in the Company’s D&O Insurance policies in effect as of the date hereof; provided that if the aggregate cost for such insurance coverage in respect of any one policy year exceeds 300% of than the current annual premium paid directors’ and officers’ liability and fiduciary liability insurance policies maintained by the Company, Parent and Merger Sub shall instead be obligated to obtain D&O Insurance with the best available coverage Sailfish with respect to matters matters, acts or omissions existing or occurring at or prior to the Effective Time for an aggregate cost in respect of each policy year within such six-year period of Time; provided, however, that Sailfish may not spend more than 300% (the “Cap Amount”) of the current last annual premium paid by the Company. (d) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (including any matters arising in connection with the Transactions) now existing in favor of any Indemnified Person as provided in any agreement in effect on the date hereof (and made available to Parent Sailfish prior to the date hereof) between hereof for the Company or any Company Subsidiary, on the one hand, and any Indemnified Person, on the other hand, will be assumed by the Surviving Corporation without further action, as six years of the Effective Time, and will survive the Merger and continue in full force and effect in accordance with their termscoverage under such “tail” policies. (e) If ParentIn the event that New Sailfish or any Subsidiary of New Sailfish, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or Table of Contents merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent New Sailfish or the Surviving Corporationsuch Subsidiary of New Sailfish, as the case may be, shall assume the obligations set forth in Section 7.10(a). New Sailfish shall not sell, transfer, distribute or otherwise dispose of any of their assets or the assets of any Subsidiary in a manner that would reasonably be expected to render New Sailfish unable to satisfy its obligations under Section 7.10(a). The provisions of this Section 6.10. (f) The rights of Indemnified Persons to indemnification and insurance pursuant to this Section 6.10 7.10 are expressly intended to be for the benefit of, and will shall be enforceable by, the parties and each Indemnified PersonPerson entitled to indemnification or insurance coverage or expense advancement pursuant to this Section 7.10, and his or her heirs and his or her legal representatives and are a contract right of each Indemnified Person as a third-party beneficiary of this Agreement, and those rights to indemnification and insurance shall exist in addition to and without limiting any and all rights to indemnification granted or arising under the Company Charter, the Company Bylaws or the Surviving Corporation’s Certificate of Incorporation or bylaws, or by operation of law. The provisions of this Section 6.10 shall survive the consummation of the Mergerrepresentatives. (gf) Notwithstanding anything herein Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Sailfish or any of its Subsidiaries or their respective officers, directors, employees or agents or fiduciaries under any Sailfish Benefit Plan, it being understood and agreed that the contrary, indemnification provided for in the event that any claim for indemnification this Section 7.10 is asserted or made on or not prior to the sixth anniversary of the Effective Time, all rights to indemnification or in respect of substitution for any such claim shall continue until the final disposition of claims under any such claimpolicies.

Director and Officer Indemnification and Insurance. (a) For Without limiting any other rights that any Indemnified Person may have pursuant to any employment agreement, indemnification agreement or applicable Law in effect on the date hereof or otherwise, from the Effective Time and until the six (6) years after year anniversary of the Effective Time, New Sailfish shall indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the Surviving Corporation date of this Agreement or who becomes prior to the Effective Time, a director, officer or employee of any Green Signing Party or of Sailfish or any of its Subsidiaries or who acts as a fiduciary under any Green Benefit Plan or any Sailfish Benefit Plan or is or was serving at the request of any Green Signing Party or of Sailfish or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise (the “Indemnified Persons”) against all losses, claims, damages, costs, fines, penalties, expenses (including attorneys’ and other professionals’ fees and expenses), liabilities or judgments or amounts that are paid in settlement, of or incurred in connection with any threatened or actual Proceeding to which such Indemnified Person is a party or is otherwise involved, including as a witness, based, in whole or in part, on or arising, in whole or in part, out of the fact that such Person is or was a director, officer or employee of any Green Signing Party or of Sailfish or any of its Subsidiaries, a fiduciary under any Green Benefit Plan or of any Sailfish Benefit Plan or is or was serving at the request of any Green Signing Party or of Sailfish or any of its Subsidiaries as a director, officer, employee or agent of another corporation, partnership, limited liability company, joint venture, Employee Benefit Plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, whether pertaining to any act or omission occurring or existing prior to or at the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“Indemnified Liabilities”), including all Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to, this Agreement or the Transactions, in each case to the fullest extent permitted under applicable Law (and New Sailfish and Old Sailfish LLC shall, jointly and Parent shall cause severally, pay expenses incurred in advance of the Surviving Corporation and final disposition of any successor to, indemnify and hold harmless, such Proceeding to each Indemnified Person to the fullest extent permitted under applicable Law). Without limiting the foregoing, in the present and former officers and directors of the Company event any such Proceeding is brought or threatened to be brought against any Company Subsidiary, and any person who becomes an officer Indemnified Persons (whether arising before or director of the Company or any Company Subsidiary prior to after the Effective Time (each, an “Indemnified Person”Time), against all claims, losses, liabilities, damages, judgments, inquiries, fines and any fees, costs and expenses (including i) the reasonable attorneys’ fees, expenses and disbursements of Indemnified Persons may retain Sailfish’s regularly engaged legal counsel of the respective Indemnified Person’s choosing) incurred or arising in connection with any claim, action, suit or proceeding, whether civil, criminal, administrative or investigative, arising out of or related other counsel satisfactory to such Indemnified Person’s service Persons, and New Sailfish shall pay all reasonable fees and expenses of such counsel for the Indemnified Persons as an officerpromptly as statements therefor are received, director, employee, fiduciary or agent of the Company or any Company Subsidiary at or prior to the Effective Time, or services performed by such Indemnified Person, at the request of the Company or any Company Subsidiary, as a fiduciary under any Company Benefit Plan, in each case to the extent they arise out of (i) matters existing or occurring or alleged to have existed or occurred at or prior to the Effective Time, and (ii) matters related to this Agreement and the Transactions and (iii) actions to enforce this provision or any other indemnification or advancement right of any Indemnified Person. In the event of any such claim, action, suit or proceeding, (A) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any such claim, action, suit or proceeding within 20 Business Days of receipt by the Surviving Corporation from such Indemnified Person of a request therefor, provided that if required under the DGCL, the Indemnified Person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such Indemnified Person is not entitled to indemnification, and (B) Parent and the Surviving Corporation New Sailfish shall use their respective reasonable its best efforts to cooperate assist in the defense of any such matter. Any Indemnified Person wishing to claim indemnification or advancement of expenses under this Section 7.10(a), upon learning of any such Proceeding, shall notify New Sailfish (but the failure so to notify shall not relieve a party from any obligations that it may have under this Section 7.10(a) except to the extent such failure materially prejudices such party’s position with respect to such claims). With respect to any determination of whether any Indemnified Person is entitled to indemnification by New Sailfish under this Section 7.10(a), such Indemnified Person shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Person and approved by New Sailfish (which approval shall not be unreasonably withheld or delayed), and who has not otherwise performed material services for New Sailfish, Sailfish, or the Indemnified Person within the last three years. Notwithstanding the foregoing and except as provided in Section 7.10(c), this Section 7.10(a) shall not require New Sailfish to indemnify, defend or hold harmless, or advance expenses to, any Indemnified Person in connection with any Proceeding (or part thereof) initiated by such Indemnified Person. (b) For six years after New Sailfish shall not amend, repeal or otherwise modify any provision in the Effective TimeOrganizational Documents of New Sailfish, Parent or any of its Subsidiaries in any manner that would affect (or manage New Sailfish or any of its Subsidiaries, with the intent to or in a manner that would affect) adversely the rights thereunder or under the Organizational Documents of New Sailfish or any of its Subsidiaries of any Indemnified Person to indemnification, exculpation and advancement except to the extent required by applicable Law. In addition to the rights provided such persons by applicable Law, New Sailfish shall, and shall cause its Subsidiaries to, fulfill and honor all rights to be maintained indemnification, advancement of expenses, and exculpation from liability existing in effect provisions in the Surviving Corporation’s Certificate of Incorporation and bylaws (or in such documents of any successor to the business favor of the Surviving Corporation) regarding elimination of liability of current or former directors, indemnification of officers, directors officers and employees of Sailfish and advancement of expenses that are no less advantageous to the intended beneficiaries than the corresponding provisions in existence on the date of this Agreement in the Company Charter and Company Bylawsits Subsidiaries. (c) Prior To the fullest extent permitted under applicable Law, New Sailfish shall indemnify any Indemnified Person against all reasonable costs and expenses (including reasonable attorneys’ fees and expenses), such amounts to be payable in advance upon request as provided in this Section 7.10, relating to the Effective Timeenforcement of such Indemnified Person’s rights under this Section 7.10 or under any charter, Parent and Merger Sub shall obtainbylaw or contract regardless of whether such Indemnified Person is ultimately determined to be entitled to indemnification hereunder or thereunder. (d) Notwithstanding any other provision in this Agreement to the contrary, and fully pay the premium for, a non-cancelable extension of the Company’s Sailfish will procure “tail” directors’ and officers’ insurance policies liability and fiduciary liability insurance policies (collectively, the “D&O Insurance”) in place as of the date hereof, in each case for with a claims reporting or discovery period of at least six years from and after the Effective Time placed with insurance companies having the same or better AM Best Financial rating as Sailfish’s current directors’ and on officers’ liability and fiduciary liability insurance companies with terms and conditions providing retentions, limits and with retentions and limits of liability that are at least as other material terms no less favorable to the insureds as those contained in the Company’s D&O Insurance policies in effect as of the date hereof; provided that if the aggregate cost for such insurance coverage in respect of any one policy year exceeds 300% of than the current annual premium paid directors’ and officers’ liability and fiduciary liability insurance policies maintained by the Company, Parent and Merger Sub shall instead be obligated to obtain D&O Insurance with the best available coverage Sailfish with respect to matters matters, acts or omissions existing or occurring at or prior to the Effective Time for an aggregate cost in respect of each policy year within such six-year period of Time; provided, however, that Sailfish may not spend more than 300% (the “Cap Amount”) of the current last annual premium paid by the Company. (d) Parent agrees that all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time (including any matters arising in connection with the Transactions) now existing in favor of any Indemnified Person as provided in any agreement in effect on the date hereof (and made available to Parent Sailfish prior to the date hereof) between hereof for the Company or any Company Subsidiary, on the one hand, and any Indemnified Person, on the other hand, will be assumed by the Surviving Corporation without further action, as six years of the Effective Time, and will survive the Merger and continue in full force and effect in accordance with their termscoverage under such “tail” policies. (e) If ParentIn the event that New Sailfish or any Subsidiary of New Sailfish, the Surviving Corporation or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary, proper provision provisions shall be made so that the successors and assigns of Parent New Sailfish or the Surviving Corporationsuch Subsidiary of New Sailfish, as the case may be, shall assume the obligations set forth in Section 7.10(a). New Sailfish shall not sell, transfer, distribute or otherwise dispose of any of their assets or the assets of any Subsidiary in a manner that would reasonably be expected to render New Sailfish unable to satisfy its obligations under Section 7.10(a). The provisions of this Section 6.10. (f) The rights of Indemnified Persons to indemnification and insurance pursuant to this Section 6.10 7.10 are expressly intended to be for the benefit of, and will shall be enforceable by, the parties and each Indemnified PersonPerson entitled to indemnification or insurance coverage or expense advancement pursuant to this Section 7.10, and his or her heirs and his or her legal representatives and are a contract right of each Indemnified Person as a third-party beneficiary of this Agreement, and those rights to indemnification and insurance shall exist in addition to and without limiting any and all rights to indemnification granted or arising under the Company Charter, the Company Bylaws or the Surviving Corporation’s Certificate of Incorporation or bylaws, or by operation of law. The provisions of this Section 6.10 shall survive the consummation of the Mergerrepresentatives. (gf) Notwithstanding anything herein Nothing in this Agreement is intended to, shall be construed to or shall release, waive or impair any rights to directors’ and officers’ insurance claims under any policy that is or has been in existence with respect to Sailfish or any of its Subsidiaries or their respective officers, directors, employees or agents or fiduciaries under any Sailfish Benefit Plan, it being understood and agreed that the contrary, indemnification provided for in the event that any claim for indemnification this Section 7.10 is asserted or made on or not prior to the sixth anniversary of the Effective Time, all rights to indemnification or in respect of substitution for any such claim shall continue until the final disposition of claims under any such claimpolicies.