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

Director and Officer Liability and Indemnification. (a) From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, each of Buyer and the Company shall, jointly and severally, indemnify and hold harmless, to the fullest extent permitted by applicable Law, each person who was or is or becomes, or is Threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any Threatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, Threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature (each, an “Indemnification Event”) by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director or officer of the Company or the Subsidiary (the “Covered Parties”), from (x) any and all direct and indirect fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees), and (y) any and all losses, claims, damages, liabilities, judgments, fines, penalties, settlement payments, awards and amounts of any type whatsoever incurred by such Covered Party in connection with or arising from any Indemnification Event arising out of or pertaining to the fact that the Covered Party is or was an officer or director of the Company or the Subsidiary (including the taking of any action or the failure to take any action as a director or officer of the Company or the Subsidiary in connection with the transactions contemplated by this Agreement), whether asserted or claimed prior to, at or after the Effective Time. Each Covered Party will be entitled, subject to applicable Law, to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, proceeding or investigation from each of Buyer and the Company within ten (10) Business Days of receipt by Buyer or the Company from the Covered Party of a request therefor; provided, however, that any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCL, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Organizational Documents of the Company shall contain, and Buyer shall cause the Organizational Documents of the Company to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of the Company than are presently set forth in the Organizational Documents of the Company. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Organizational Documents of the Subsidiary shall contain, and Buyer shall cause the Organizational Documents of the Subsidiary to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of such Subsidiary than are presently set forth in the Organizational Documents of such Subsidiary. (c) In the event that Buyer or the Company or any of their respective successors or permitted 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 stock, properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors or assigns of Buyer or the Company, as the case may be, shall succeed to the obligations set forth in this Section 6.2. (d) At the Closing, the Company will purchase and fully pay for a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy for a term of six (6) years after the Effective Date (a form of which is attached to this Agreement as Schedule 6.2(d)) (the “D&O Tail Policy”). Until the sixth anniversary of the Effective Time, Buyer shall cause the Company (i) to maintain the D&O Tail Policy in full force and effect, (ii) not to amend or otherwise modify the D&O Tail Policy coverage or take any action that would result in the cancellation, termination, amendment or modification of the D&O Tail Policy and (iii) to continue to honor its obligations under the D&O Tail Policy coverage.

Director and Officer Liability and Indemnification. (a) From Without limiting any additional rights that any Person may have under any other agreement, from the Effective Time Closing Date through the sixth (6th) anniversary of the date on which Closing Date, Buyer will cause the Effective Time occursPurchased Subsidiaries to indemnify, each of Buyer and the Company shall, jointly and severally, indemnify defend and hold harmless, harmless each present (as of immediately prior to the fullest extent permitted by applicable LawClosing) and former officer, each person who was director, employee, manager, managing member, member, partner (general or is or becomes, or is Threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any Threatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, Threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claimslimited), criminal, administrative, arbitrative fiduciary or investigative nature agent of the Purchased Subsidiaries who at or prior to the Closing provided services primarily in respect of the Business (each, an “Indemnification Event”) by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director or officer of the Company or the Subsidiary (the “Covered PartiesIndemnified Person”), from (x) any and against all direct and indirect fees and costsclaims, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees), and (y) any and all losses, claimsliabilities, damages, liabilities, judgments, finesinquiries, penaltiesfines and reasonable fees, settlement paymentscosts and expenses, awards including attorneys’ fees and amounts of any type whatsoever disbursements, incurred by such Covered Party in connection with any action, suit, claim, investigation or arising from any Indemnification Event proceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that the Covered Party Indemnified Person is or was an officer officer, director, employee, manager, managing member, partner (general or director limited), fiduciary or agent of the Company Purchased Subsidiaries at such time that the Indemnified Person provided services primarily in respect of the Business or (ii) matters existing or occurring at or prior to the Subsidiary Closing (including the taking of any action or the failure to take any action as a director or officer of the Company or the Subsidiary in connection with this Agreement and the transactions contemplated by this Agreementhereby), whether asserted or claimed prior to, at or after the Effective TimeClosing, to the fullest extent permitted under applicable Law. Each Covered Party In the event of any such action, suit, claim, investigation or proceeding, (x) each Indemnified Person will be entitled, subject to applicable Law, entitled to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, claim, investigation or proceeding or investigation from each of Buyer and the Company within ten (10) Business Days of receipt by Buyer or the Company from the Covered Party Indemnified Person of a request therefor; provided, however, therefor (provided that any person such Indemnified Person to whom expenses are to be advanced provides an undertaking, to the extent required by the DGCL, must provide a reasonable and customary undertaking to repay such advances advanced amounts if it is ultimately finally determined in a non-appealable ruling by a court of competent jurisdiction that such person Person is not entitled to indemnification), (y) Buyer will not, and will cause its Subsidiaries (including the Purchased Subsidiaries) not to, settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, claim, investigation or proceeding in which indemnification could be sought by such Indemnified Person hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Person from all liability arising out of such action, suit, claim, investigation or proceeding (including all attorney’s fees and expenses) or such Indemnified Person otherwise consents and (z) Buyer will, and will cause its Subsidiaries (including the Purchased Subsidiaries) to, reasonably cooperate in the defense of any such matter. (b) From For a period of six (6) years from the Effective Time through Closing Date, Buyer will not, and will cause each Purchased Subsidiary not to, amend, repeal or modify any provision in such Person’s certificate of incorporation, bylaws, limited liability company agreement or operating agreement (or equivalent organizational documents), or in any agreement set forth on Schedule 5.19(b), relating to the exculpation or indemnification of, or advancement of expenses to, any Indemnified Person as in effect as of the date of this Agreement in any manner adverse to any Indemnified Person, and Buyer will cause all such provisions to be observed by the Purchased Subsidiaries, it being the intent of the parties that any Indemnified Person will continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent permitted under applicable Law. (c) At or prior to the Closing, TopCo will (at Buyer’s expense) obtain irrevocable “tail” insurance policies covering directors’ and officers’ liability, employment practices liability and fiduciary liability naming the Indemnified Persons as direct beneficiaries (“D&O Tail Policies”) with a claims period of six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as TopCo’s current insurance carrier with respect to directors’ and officers’ liability, employment practices liability and fiduciary liability insurance covering the Purchased Subsidiaries in an amount and scope at least as favorable as the Purchased Subsidiaries’ existing policies with respect to matters existing or occurring at or prior to the Closing; provided that, in the event that any claim is brought under any such D&O Tail Policy prior to the sixth (6th) anniversary of the date on which Closing Date, such D&O Tail Policies will be maintained until final disposition thereof. Buyer and will not, and will cause the Effective Time occursPurchased Subsidiaries not to, cancel or change such D&O Tail Policies in any respect. Notwithstanding anything to the Organizational Documents contrary in this Section 5.19(c), Buyer shall not be required to pay any premium for the D&O Tail Policies in excess of two hundred and fifty percent (250%) of the annual premiums currently paid by TopCo for its existing directors’ and officers’ liability, employment practices liability and fiduciary liability insurance policies as of the date of this Agreement; provided that, if the annual premiums currently paid by the Company for such directors’ and officers’ liability, employment practices liability and fiduciary liability insurance policies exceed such amount, TopCo shall containcause obtain insurance with the best coverage available for a cost not exceeding such amount. (d) The rights of indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which any Indemnified Person may at any time be entitled. No right or remedy herein conferred by this Section 5.19 is intended to be exclusive of any other right or remedy provided pursuant to this Agreement, and every other right and remedy provided pursuant to this Agreement shall be cumulative and in addition to every other right and remedy given pursuant to this Section 5.19. Buyer shall cause hereby acknowledges that the Organizational Documents of Indemnified Persons have or may, in the Company to so containfuture, provisions no less favorable to the Covered Parties with respect have certain rights to indemnification, advancement of expenses and exculpation or insurance provided by other Persons (collectively, “Other Indemnitors”). Buyer hereby agrees that, with respect to any advancement or indemnification obligation owed, at any time, to a Indemnified Person by Buyer, any of present and former directors and officers its Subsidiaries or any Other Indemnitor, whether pursuant to any certificate of incorporation, bylaws, partnership agreement, operating agreement, indemnification agreement or other document or agreement set forth on Schedule 5.19(b), or pursuant to this Section 5.19 (any of the Company than are presently set forth in foregoing, an “Indemnification Obligation” ), and, after the Organizational Documents of the Company. From the Effective Time through the sixth anniversary of the date on which the Effective Time occursClosing, the Organizational Documents of the Subsidiary shall contain, and Buyer shall cause the Organizational Documents Purchased Subsidiaries to (i) jointly and severally, and at all times, be the indemnitors of first resort (i.e., the Purchased Subsidiaries’ obligations to an Indemnified Person shall be primary and any obligation of the Subsidiary Other Indemnitors to so containadvance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnified Person shall be secondary) and (ii) at all times, provisions no less favorable be required to advance, and shall be liable, jointly and severally, for, the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the Covered Parties extent legally permitted and as required by the terms of this Agreement or any Indemnification Obligation, without regard to any rights that an Indemnified Person may have against the Other Indemnitors. Furthermore, Buyer irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims (x) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (y) that the Indemnified Person must seek expense advancement, reimbursement or indemnification, from any Other Indemnitor before the Purchased Subsidiaries must perform their expense advancement, reimbursement and indemnification obligations under this Agreement. Buyer hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of an Indemnified Person with respect to indemnificationany claim for which an Indemnified Person has sought indemnification from the Purchased Subsidiaries shall affect the foregoing, advancement and the Other Indemnitors shall have a right of expenses and exculpation of present and former directors and officers contribution and/or be subrogated to the extent of such Subsidiary than are presently set forth in advancement, indemnification or other payment to all of the Organizational Documents rights of recovery of such SubsidiaryIndemnified Person against the Purchased Subsidiaries, and the Purchased Subsidiaries shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such Indemnified Person to the extent such amounts would have otherwise been payable by the Purchased Subsidiaries under any Indemnification Obligation. (ce) In the event that Buyer or any of the Company Purchased Subsidiaries or any of their the respective successors or permitted assigns of the foregoing (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 stock, properties or assets to any Person, then, and in each such case, proper provision shall be made so that the successors or and assigns of Buyer such Persons or the Companyproperties or assets, as the case may be, shall succeed to must expressly assume in writing and be bound by the obligations set forth in this Section 6.25.19 as a condition of succession of assignment. (df) At This Section 5.19 is intended to be for the benefit of each of the Indemnified Persons and, after the Closing, the Company will purchase and fully pay for may be enforced by any such Indemnified Person as if such Indemnified Person were a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy for a term of six (6) years after the Effective Date (a form of which is attached party to this Agreement Agreement. The obligations of Buyer and the Purchased Subsidiaries under this Section 5.19 will not be terminated or modified in such a manner as Schedule 6.2(d)) (to adversely affect any Person to whom this Section 5.19 applies without the “D&O Tail Policy”). Until the sixth anniversary consent of the Effective Time, Buyer shall cause the Company (i) to maintain the D&O Tail Policy in full force and effect, (ii) not to amend or otherwise modify the D&O Tail Policy coverage or take any action that would result in the cancellation, termination, amendment or modification of the D&O Tail Policy and (iii) to continue to honor its obligations under the D&O Tail Policy coveragesuch affected Person.

Director and Officer Liability and Indemnification. (a) From Without limiting any additional rights that any Person may have under any other agreement, from the Effective Time Closing Date through the sixth (6th) anniversary of the date on which the Effective Time occursClosing Date, each of Buyer and the Company shall, jointly Surviving Corporation and severally, indemnify its Subsidiaries will honor all indemnity and hold harmless, advancement obligations to present (as of immediately prior to the fullest extent permitted by applicable Law, each person who was Effective Time) and former officers or is or becomes, or is Threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any Threatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal directors of the Company or any other actual, Threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature its Subsidiaries (each, an “Indemnification Event”) by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director or officer of the Company or the Subsidiary (the “Covered PartiesIndemnified Person”), from (x) any against all claims, losses, liabilities, damages, judgments, inquiries, fines and all direct and indirect fees and costs, retainers, court costs, transcript costs, fees of experts, witness reasonable fees, travel costs and expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees)fees and disbursements, and (y) any and all losses, claims, damages, liabilities, judgments, fines, penalties, settlement payments, awards and amounts of any type whatsoever incurred by such Covered Party in connection with any Proceeding, whether civil, criminal, administrative or arising from any Indemnification Event investigative, arising out of or pertaining to (i) the fact that the Covered Party Indemnified Person is or was an officer or director of the Company or any of its Subsidiaries prior to the Subsidiary Effective Time or (ii) matters existing or occurring at or prior to the Closing (including this Agreement and the taking of any action or the failure to take any action as a director or officer of the Company or the Subsidiary in connection with the transactions contemplated by this AgreementTransactions), whether asserted or claimed prior to, at or after the Effective TimeClosing, in accordance with the express provisions as in effect on the date hereof of the Company’s Organizational Documents or under any indemnification agreements between a member of the Company and an Indemnified Person regarding such Indemnified Person’s indemnification rights or required to the fullest extent permitted under applicable Law. Each Covered Party In the event of any such action, suit, claim, investigation or proceeding, each Indemnified Person will be entitled, subject to applicable Law, entitled to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, claim, investigation or proceeding from Buyer or investigation from each of Buyer the Surviving Corporation and the Company within ten (10) Business Days of its Subsidiaries promptly following receipt by Buyer or the Company Surviving Corporation from the Covered Party Indemnified Person of a request therefor; provided, however, provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCLDGCL or other applicable Law and by the certificate of incorporation, to repay such advances if it is ultimately determined that such person is not entitled to indemnificationbylaws, limited liability company agreement or operating agreement (or equivalent organizational documents) of the Surviving Corporation or any Subsidiary thereof. (b) From For a period of at least six (6) years from the Closing Date, Buyer and the Surviving Corporation will not, and will not permit any of their Subsidiaries to, amend, repeal or modify any advancement or indemnification provisions in such Person’s Organizational Documents), or in any agreement, relating to the exculpation or indemnification of, or advancement of expenses to, any Indemnified Person as in effect immediately prior to the Effective Time through in any manner adverse to any Indemnified Person, and Buyer and the Surviving Corporation will cause all such provisions to be observed by their Subsidiaries, it being the intent of the Parties that any Indemnified Person will continue to be entitled to such exculpation, indemnification and advancement of expenses set forth in the applicable documents to the fullest extent permitted under applicable Law. (c) At the Closing, the Surviving Corporation will (at the Company’s expense) obtain, maintain and fully pay for irrevocable “tail” insurance policies naming the Indemnified Persons as direct beneficiaries with a claims period of at least six (6) years from the Closing Date from an insurance carrier with the same or better credit rating as the Company’s current insurance carrier with respect to directors’ and officers’ liability and employment practices liability insurance in an amount and scope at least as favorable as the Company’s and its Subsidiaries’ existing policies with respect to matters existing or occurring at or before the Closing Date (the “D&O Tail Policy”); provided that, in the event that any claim is brought under any such policy before the sixth (6th) anniversary of the date on Closing Date, such insurance policies will be maintained until final disposition thereof. Buyer and the Surviving Corporation will not, and will cause their Subsidiaries to not, cancel or change such insurance policies in any respect and will maintain such policies in full force and effect. (d) The rights of indemnification and to receive advancement of expenses as provided by this Agreement shall not be deemed exclusive of any other rights to which the Effective Time occursany Indemnified Person may at any time be entitled, the Organizational Documents and every other right and remedy of the Company Indemnified Persons shall contain, be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at Law or in equity or otherwise. Buyer shall cause and Merger Sub hereby acknowledge that the Organizational Documents of Indemnified Persons have or may in the Company to so contain, provisions no less favorable to the Covered Parties with respect future have certain rights to indemnification, advancement of expenses or insurance provided by other Persons (collectively, “Other Indemnitors”). Buyer and exculpation Merger Sub hereby agree that, with respect to any advancement or indemnification obligation owed at any time to an Indemnified Person by Buyer, the Surviving Corporation or any of present and former directors and officers its Subsidiaries or any Other Indemnitor, whether pursuant to any certificate of incorporation, bylaws, partnership agreement, operating agreement, indemnification agreement or other document or agreement or pursuant to this Section 6.05 (any of the Company than are presently set forth in foregoing, an “Indemnification Obligation”), Buyer, the Organizational Documents of the Company. From Surviving Corporation and its Subsidiaries shall be, and, after the Effective Time through the sixth anniversary of the date on which the Effective Time occursTime, the Organizational Documents of the Subsidiary shall contain, and Buyer shall cause the Organizational Documents Surviving Corporation and its Subsidiaries to be, (i) jointly and severally, and at all times, the indemnitors of first resort (i.e., Buyer’s, the Surviving Corporation’s and its Subsidiaries’ obligations to an Indemnified Person shall be primary and any obligation of the Subsidiary Other Indemnitors to so containadvance expenses or to provide indemnification for the same expenses or liabilities incurred by an Indemnified Person shall be secondary) and (ii) at all times, provisions no less favorable required to advance, and liable, jointly and severally, for the full amount of all expenses, judgments, penalties, fines and amounts paid in settlement to the Covered Parties extent legally permitted and as required by the terms of this Agreement or any Indemnification Obligation, without regard to any rights that an Indemnified Person may have against the Other Indemnitors. Furthermore, Buyer irrevocably waives, relinquishes and releases the Other Indemnitors from any and all claims (x) against the Other Indemnitors for contribution, subrogation, indemnification or any other recovery of any kind in respect thereof and (y) that the Indemnified Person must seek expense advancement, reimbursement or indemnification from any Other Indemnitor before the Surviving Corporation or its Subsidiaries or Buyer must perform its expense advancement, reimbursement and indemnification obligations under this Agreement. Buyer hereby further agrees that no advancement, indemnification or other payment by the Other Indemnitors on behalf of an Indemnified Person with respect to indemnificationany claim for which an Indemnified Person has sought indemnification from Buyer or the Surviving Corporation or its Subsidiaries shall affect the foregoing, advancement and the Other Indemnitors shall have a right of expenses and exculpation of present and former directors and officers contribution and/or be subrogated to the extent of such Subsidiary than are presently set forth in advancement, indemnification or other payment to all of the Organizational Documents rights of recovery of such SubsidiaryIndemnified Person against Buyer, the Surviving Corporation or its Subsidiaries, and Buyer, the Surviving Corporation and its Subsidiaries shall jointly and severally indemnify and hold harmless against such amounts actually paid by the Other Indemnitors to or on behalf of such Indemnified Person to the extent such amounts would have otherwise been payable by Buyer, the Surviving Corporation or its Subsidiaries under any Indemnification Obligation. (ce) In the event that Buyer or Buyer, the Company Surviving Corporation or any of their Subsidiaries or any of the respective successors or permitted assigns of the foregoing (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 stockproperties, properties rights or assets to any Person, then, and in each such case, proper provision shall be made so Buyer or the Surviving Corporation, as applicable, will use it commercially reasonable efforts to ensure that the successors or and assigns of Buyer such Persons or the Companyproperties, rights or assets, as the case may be, shall succeed to expressly assume in writing and be bound by the obligations set forth in this Section 6.26.05 as a condition of succession of assignment. (df) At This Section 6.05 is intended to be for the Closingbenefit of each of the Indemnified Persons and may be enforced by any such Indemnified Person as if such Indemnified Person were a party to this Agreement. The obligations of Buyer and the Surviving Corporation under this Section 6.05 will not be terminated or modified in such a manner as to adversely affect any Person to whom this Section 6.05 applies without the consent of such affected Person. (g) Notwithstanding the foregoing, no Indemnified Person will have any right of indemnification, advancement or exculpation from the Buyer, the Company will purchase and fully pay for a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy for a term of six (6) years after the Effective Date (a form of which is attached Surviving Corporation or their respective successors pursuant to this Agreement as Schedule 6.2(d)) (Section 6.05 to the “D&O Tail Policy”). Until the sixth anniversary of the Effective Time, Buyer shall cause the Company extent such Indemnified Person has (i) committed Fraud,(ii) violated any fiduciary duties under Delaware law or failed to maintain satisfy the D&O Tail Policy standards for indemnification set forth in full force and effect, (ii) not to amend or otherwise modify the D&O Tail Policy coverage or take any action that would result in the cancellation, termination, amendment or modification Section 145 of the D&O Tail Policy and DGCL; provided, however, that nothing in this Section 6.05 shall require or permit indemnification or the advancement of expenses arising out of or in any way relating to a breach of this Agreement by the Company, or (iii) taken any action (or omitted to continue take any action) that constitutes a breach of this Agreement by the Company. The Buyer Parties and the Surviving Corporation, on behalf of themselves and their Subsidiaries, expressly acknowledge and agree, that the agreements contained in this Section 6.05 and the indemnification contemplated by this Section 6.05 require performance after the Closing to honor its the maximum extent permitted by applicable Law and will survive the Closing for the maximum duration permitted under applicable Law (or if earlier, when no obligations under this Section 6.05 remain) and will not be subject to any of the D&O Tail Policy coveragesurvival or exclusive remedy provisions of Section 10.01.

Director and Officer Liability and Indemnification. (a) From During the Effective Time through period from the sixth Closing until the six year anniversary of the date on which the Effective Time occursClosing Date, each of Buyer the Purchaser and the Company Parties shall, jointly and severally, indemnify and hold harmless, to the fullest extent permitted by applicable Law, each person Person who was or is or becomes, or is Threatened threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any Threatenedthreatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, Threatened threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature (each, an “Indemnification Event”) by reason of the fact that such person Person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective TimeClosing, a director (i) any manager, director, employee or officer of any Company Party, (ii) any Person that provides or provided services under the Services Agreement to any Company Party (including GNHYA Management Corporation), and (iii) any Affiliate, manager, director, employee or the Subsidiary officer of any Person described in clause (i) or (ii) (clauses (i), (ii) and (iii), collectively, the “Covered Parties”), from (x) any and all direct and indirect reasonable fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other reasonable disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees), and (y) any and all losses, claims, damages, liabilities, judgments, fines, penalties, settlement payments, awards and amounts of any type whatsoever incurred by such Covered Party Party, in either case, in connection with or arising from any Indemnification Event arising out of or pertaining to the fact that the Covered Party is or was an officer such a manager, officer, employee, director, provider of services or director of the Company or the Subsidiary Affiliate (including the taking of any action or the failure to take any action as a director or officer of the Company or the Subsidiary in such capacity in connection with the transactions contemplated by this AgreementTransactions), whether asserted or claimed prior to, at or after Closing; provided, however, in no event shall the Effective TimePurchaser or any Company Party be obligated to indemnify any such Covered Party in the case of fraud; provided, further, however that the indemnification pursuant to this Section 7.17(a) shall not apply to any such Covered Party in connection with any claim made by the Purchaser for indemnification pursuant to this Agreement or any other Transaction Document. Each Covered Party will be entitled, subject to applicable Law, to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, proceeding or investigation from each of Buyer the Purchaser and the applicable Company Party within ten (10) Business Days 14 days of receipt by Buyer the Purchaser or the applicable Company Party from the Covered Party of a request therefor; provided, however, that any person Covered Party to whom expenses are advanced provides an undertaking, to the extent required by the DGCLapplicable Law, to repay such advances if it is ultimately determined that such person Covered Party is not entitled to indemnification. (b) From In furtherance of the Effective Time through foregoing, during the sixth period from the Closing until the six year anniversary of the date on which Closing Date, (i) the Effective Time occurs, Purchaser shall cause the Organizational Documents Charters or the Operating Agreements of the Company shall contain, Parties to contain provisions with respect to indemnification and Buyer shall cause the Organizational Documents of the Company to so contain, provisions exculpation no less favorable beneficial to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of the Company than are presently Persons as set forth in the Organizational Documents Charters or the Operating Agreements of the Company. From Company Parties on the Effective Time through date hereof (unless prohibited by applicable Law), and (ii) the sixth anniversary Purchaser shall not, and shall not permit the Company to amend, repeal or modify any provision in the Charters or the Operating Agreements of the date on which Company Parties relating to the Effective Time occursexculpation or indemnification of any Covered Person in any way that decreases or restricts a Company Party’s obligations or the Covered Persons’ rights thereunder (unless required by applicable Law), it being the Organizational Documents intent of the Subsidiary parties hereto that the Covered Persons shall contain, continue to be entitled to such exculpation and Buyer shall cause indemnification to the Organizational Documents full extent of the Subsidiary to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of such Subsidiary than are presently set forth in the Organizational Documents of such Subsidiaryapplicable Law. (c) In the event that Buyer or after the Company Closing Date, the Purchaser or any of Company Party, or their respective successors or permitted assigns assigns, (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers or conveys all or substantially all of its stock, properties or and assets to any Person, then, and in each such case, reasonable and proper provision shall be made so that the successors or and assigns of Buyer the Purchaser or the CompanyCompany Party, as the case may be, shall succeed honor the indemnification and other obligations of such Persons (to the obligations set forth in extent allowed by applicable Law), including under this Section 6.27.17. (d) At The provisions of this Section 7.17 are intended to be for the Closingbenefit of, the Company will purchase and fully pay for a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy for a term of six (6) years after the Effective Date (a form of which is attached to this Agreement as Schedule 6.2(d)) (the “D&O Tail Policy”). Until the sixth anniversary of the Effective Timeshall be enforceable by, Buyer shall cause the Company (i) to maintain the D&O Tail Policy in full force and effect, (ii) not to amend or otherwise modify the D&O Tail Policy coverage or take any action that would result in the cancellation, termination, amendment or modification of the D&O Tail Policy and (iii) to continue to honor its obligations under the D&O Tail Policy coverageeach Covered Person.

Director and Officer Liability and Indemnification. (a) From During the Effective Time through period from the sixth Closing until the six year anniversary of the date on which the Effective Time occursClosing Date, each of the Buyer and the Company shall, jointly and severally, indemnify and hold harmless, to the fullest extent permitted by applicable Law, each person who was or is or becomes, or is Threatened threatened to be made, a party to or witness or other participant in, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any Threatenedthreatened, pending or completed claim, action, suit, proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, Threatened threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative, arbitrative or investigative nature (each, an “Indemnification Event”) by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective TimeClosing, a director or officer of the Company or the Subsidiary (the “Covered Parties”), from (x) any and all direct and indirect fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees), and (y) any and all losses, claims, damages, liabilities, judgments, fines, penalties, settlement payments, awards and amounts of any type whatsoever incurred by such Covered Party in connection with or arising from any Indemnification Event arising out of or pertaining to the fact that the Covered Party is or was an officer or director of the Company or the Subsidiary (including the taking of any action or the failure to take any action as a director or officer of the Company or the Subsidiary in connection with the transactions contemplated by this AgreementTransactions), whether asserted or claimed prior to, at or after the Effective TimeClosing. Each Covered Party will be entitled, subject to applicable Law, to advancement of expenses incurred in the defense of or other participation in any such claim, action, suit, proceeding or investigation from each of the Buyer and the Company within ten (10) 10 Business Days of receipt by the Buyer or the Company from the Covered Party of a request therefor; provided, however, that any person to whom expenses are advanced provides an undertaking, to the extent required by the DGCLDelaware General Corporation Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. (b) From During the Effective Time through period from the sixth Closing until the six year anniversary of the date on which Closing Date, (i) the Effective Time occurs, the Organizational Documents of the Company shall contain, and Buyer shall cause the Organizational Documents of the Company to so contain, contain provisions with respect to indemnification and exculpation no less favorable beneficial to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of the Company than are presently Persons as set forth in the Organizational Documents of the Company. From Company on the Effective Time through Closing Date (unless prohibited by law), and (ii) the sixth anniversary of Buyer shall not, and shall not permit the date on which the Effective Time occursCompany to amend, repeal or modify any provision in the Organizational Documents of the Subsidiary shall containCompany relating to the exculpation or indemnification of any Covered Person in any way that decreases or restricts the Company’s obligations or the Covered Persons’ rights thereunder (unless required by law), and Buyer shall cause it being the Organizational Documents intent of the Subsidiary Parties that the Covered Persons shall continue to so contain, provisions no less favorable be entitled to such exculpation and indemnification to the Covered Parties with respect to indemnification, advancement full extent of expenses and exculpation of present and former directors and officers of such Subsidiary than are presently set forth in the Organizational Documents of such SubsidiaryLaw. (c) In the event that after the Closing Date, the Buyer or the Company Company, or any of their respective successors or permitted assigns assigns, (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers or conveys all or substantially all of its stock, properties or and assets to any Person, then, and in each such case, reasonable and proper provision shall be made so that the successors or and assigns of the Buyer or the Company, as the case may be, shall succeed honor the indemnification and other obligations of such Persons (to the obligations set forth in extent allowed by Law), including under this Section 6.24.02. (d) At The provisions of this Section 4.02 are intended to be for the Closingbenefit of, the Company will purchase and fully pay for a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy for a term of six (6) years after the Effective Date (a form of which is attached to this Agreement as Schedule 6.2(d)) (the “D&O Tail Policy”). Until the sixth anniversary of the Effective Timeshall be enforceable by, Buyer shall cause the Company (i) to maintain the D&O Tail Policy in full force and effect, (ii) not to amend or otherwise modify the D&O Tail Policy coverage or take any action that would result in the cancellation, termination, amendment or modification of the D&O Tail Policy and (iii) to continue to honor its obligations under the D&O Tail Policy coverageeach Covered Person.

Director and Officer Liability and Indemnification. (a) From Without limiting any additional rights any Person may have under any other agreement, from the Effective Time Closing Date through the sixth (6th) anniversary of the date on which the Effective Time occursClosing Date, each of Buyer shall, and shall cause the Company shall, jointly and severallyits Subsidiaries to, indemnify and hold harmless, harmless each present (as of immediately prior to the fullest extent permitted by applicable LawClosing) and former officer, each person who was director, employee or is agent of the Company or becomesany of its Subsidiaries (the “Indemnified D&O Parties”), or is Threatened to be madeagainst all claims, a party to or witness or other participant inlosses, or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any Threatened, pending or completed claim, action, suit, proceeding, arbitration proceeding or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, Threatened or completed proceeding, whether brought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims)civil, criminal, administrativeadministrative or investigative, arbitrative or investigative nature (each, an “Indemnification Event”) by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, a director or officer of the Company or the Subsidiary (the “Covered Parties”), from (x) any and all direct and indirect fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees), and (y) any and all losses, claims, damages, liabilities, judgments, fines, penalties, settlement payments, awards and amounts of any type whatsoever incurred by such Covered Party in connection with or arising from any Indemnification Event arising out of or pertaining to (a) the fact that the Covered Indemnified D&O Party is or was an officer officer, director, employee, fiduciary or director agent of the Company or any of its Subsidiaries or (b) matters existing or occurring at or prior to the Subsidiary Closing Date (including the taking of any action or the failure to take any action as a director or officer of the Company or the Subsidiary in connection with this Agreement and the transactions and actions contemplated by this Agreementhereby), whether asserted or claimed prior to, at or after the Effective Time. Each Covered Party will be entitledClosing Date, subject to the fullest extent permitted under applicable Law, to advancement . In the event of expenses incurred in the defense of or other participation in any such claim, action, suit, proceeding or investigation, (x) each Indemnified D&O Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from each Buyer, the Company or a Subsidiary of Buyer and the Company within ten (10) Business Days of receipt by Buyer or the Company from the Covered Indemnified D&O Party of a request therefor; provided, however, provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by applicable Law or the DGCLCompany’s or its applicable Subsidiary’s Organizational Documents, to repay such advances if it is ultimately determined that such person is not entitled to indemnification. , (by) From the Effective Time through the sixth anniversary of the date on which the Effective Time occursneither Buyer, the Organizational Documents Company, any Subsidiary of the Company shall contain, and Buyer shall cause the Organizational Documents of the Company to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of the Company than are presently set forth in the Organizational Documents of the Company. From the Effective Time through the sixth anniversary of the date on which the Effective Time occurs, the Organizational Documents of the Subsidiary shall contain, and Buyer shall cause the Organizational Documents of the Subsidiary to so contain, provisions no less favorable to the Covered Parties with respect to indemnification, advancement of expenses and exculpation of present and former directors and officers of such Subsidiary than are presently set forth in the Organizational Documents of such Subsidiary. (c) In the event that Buyer or the Company or nor any of their respective successors Affiliates, shall settle, compromise or permitted assigns consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (i) consolidates with in which indemnification could be sought by such Indemnified D&O Party hereunder), unless such settlement, compromise or merges into any other Person and shall not be the continuing or surviving corporation or entity consent includes an unconditional release of such consolidation Indemnified D&O Party from all liability arising out of such action, suit, proceeding, investigation or merger claim or (ii) transfers or conveys all or substantially all of its stock, properties or assets to any Person, thensuch Indemnified D&O Party otherwise consents, and in each such case(z) Buyer, proper provision shall be made so that the successors or assigns of Buyer or the Company, as the case may be, shall succeed to the obligations set forth in this Section 6.2. (d) At the Closing, Subsidiaries of the Company will purchase and fully pay for a “tail” policy under the Company’s existing directors’ and officers’ liability insurance policy for a term of six (6) years after the Effective Date (a form of which is attached to this Agreement as Schedule 6.2(d)) (the “D&O Tail Policy”). Until the sixth anniversary of the Effective Time, Buyer their respective Affiliates shall cause the Company (i) to maintain the D&O Tail Policy in full force and effect, (ii) not to amend or otherwise modify the D&O Tail Policy coverage or take any action that would result cooperate in the cancellation, termination, amendment or modification defense of the D&O Tail Policy and (iii) to continue to honor its obligations under the D&O Tail Policy coverageany such matter.