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

Director and Officer Liability; Indemnification. (a) For a period of six years after the Closing, Purchaser shall not, and shall not permit the Blockers or the Fairway Group Companies to, (i) amend, repeal or modify any provision in any of their Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any present or former officers, managers and / or directors (each, a “D&O Indemnified Person”) or (ii) permit the board of directors or board of managers, as applicable, of the Blocker or Fairway Group Company to make a determination not to indemnify any such D&O Indemnified Person except in the case of fraud, willful misconduct or gross negligence (in each case, unless and to the extent required by Law); provided, however, that nothing in this Section 7.7(a) shall prohibit Purchaser from liquidating and/or dissolving, or permitting the liquidation and/or dissolution of, any Blocker or any Fairway Group Company following the Closing. (b) In the event that Purchaser, the Blockers, the Company, any of the Operating Subsidiaries or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is not 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 other assets to any Person, then, and in each such case, Purchaser shall cause proper provision to be made so that the applicable successors and assigns or transferees expressly assume the obligations set forth in this Section 7.7. (c) The Representative (on behalf of the Sellers) agrees to pay the fees of the Independent Directors (as defined in the Organizational Documents of those Operating Subsidiaries) subject to the Securitization Indebtedness) to the extent such Independent Directors are required to be retained in accordance with such Organization Documents or, if sooner, until such time as the Independent Directors are no longer serving in such capacity.

Director and Officer Liability; Indemnification. (a) From and after the Closing, Pxxxxxxxx agrees that it shall indemnify and hold harmless each present and former director and officer of (x) each Target Company (the “Company Indemnified Parties”) and (y) Purchaser (the “Purchaser Indemnified Parties” and together with the Company Indemnified Parties, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Target Companies or Purchaser, as the case may be, would have been permitted under applicable Law and its respective certificate of incorporation, certificate of formation, bylaws, limited liability company agreement or other organizational documents in effect on the date of this Agreement to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, Purchaser shall, and shall cause its Subsidiaries to (i) maintain provisions in its Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of Purchaser’s and its Subsidiaries’ (including the Target Companies’) former and current officers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the Organizational Documents of the Target Companies, Purchaser or their respective Subsidiaries, as applicable, in each case, as of the date of this Agreement, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. (b) For a period of six (6) years after from the Closing, Purchaser shall notmaintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by Purchaser’s, the Target Companies’ or their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to Purchaser or its agents or representatives) on terms not less favorable than the terms of such current insurance coverage, except that in no event shall not permit Purchaser be required to pay an annual premium for such insurance in excess of three hundred percent (300%) of the Blockers aggregate annual premium payable by Purchaser or the Fairway Group Companies to, (i) amend, repeal or modify any provision in any of their Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any present or former officers, managers and / or directors (each, a “D&O Indemnified Person”) or (ii) permit the board of directors or board of managersTarget Companies, as applicableapplicable (whichever premium being higher), of for such insurance policy for the Blocker or Fairway Group Company to make a determination not to indemnify any such D&O Indemnified Person except in year ended December 31, 2021 (the case of fraud, willful misconduct or gross negligence (in each case, unless and to the extent required by Law“Maximum Annual Premium”); provided, that, if the annual premiums of such insurance coverage exceed the Maximum Annual Premium, then Purchaser shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium from an insurance carrier with the same or better credit rating as Purchaser’s or the Target Companies’ current directors’ and officers’ liability insurance carrier; provided, however, that nothing in (i) Purchaser may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six (6) year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Closing and (ii) if any claim is asserted or made within such six (6) year period, any insurance required to be maintained under this Section 7.7(a) 5.14 shall prohibit Purchaser from liquidating and/or dissolving, or permitting be continued in respect of such claim until the liquidation and/or dissolution of, any Blocker or any Fairway Group Company following the Closingfinal disposition thereof. (bc) Notwithstanding anything contained in this Agreement to the contrary, this Section 5.14 shall survive the consummation of the Transactions indefinitely and shall be binding, jointly and severally, on Purchaser and all successors and assigns of Purchaser. In the event that Purchaser, the Blockers, the Company, any of the Operating Subsidiaries Target Companies or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is 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 other assets to any Person, then, and in each such case, Purchaser shall cause ensure that proper provision to shall be made so that the applicable successors and assigns or transferees expressly assume of Purchaser shall succeed to the obligations set forth in this Section 7.75.14. (cd) The Representative (on behalf On the Closing Date, Purchaser shall enter into customary indemnification agreements reasonably satisfactory to Seller and Purchaser with the post-Closing directors and officers of the Sellers) agrees to pay the fees of the Independent Directors (as defined in the Organizational Documents of those Operating Subsidiaries) subject to the Securitization Indebtedness) to the extent such Independent Directors are required Purchaser, which indemnification agreements shall continue to be retained in accordance with such Organization Documents or, if sooner, until such time as effective following the Independent Directors are no longer serving in such capacityClosing.

Director and Officer Liability; Indemnification. (a) For a period If the Closing occurs, the Purchaser shall cause all rights to indemnification and all limitations on liability existing in favor of six years any employee, officer, director, managing member or manager of the Acquired Entities, in each case that is an individual (collectively, the “Company Indemnitees”), as provided in the Organizational Documents of the Acquired Entities to survive the consummation of the transactions contemplated hereby and continue in full force and effect and be honored by the Acquired Entities after the Closing. The obligations of the Purchaser under this Section 9.01(a) shall not be terminated or modified in such a manner as to adversely affect any Company Indemnitee to whom this Section 9.01(a) applies without the consent of such affected Company Indemnitee (it being expressly agreed that the Company Indemnitees to whom this Section 9.01(a) applies shall be third party beneficiaries of this Section 9.01(a)). If the Closing occurs, the Purchaser shall not, and shall not permit cause the Blockers Acquired Entities to pay all expenses to any Company Indemnitee incurred in successfully enforcing the indemnity or the Fairway Group Companies to, (i) amend, repeal or modify any provision in any of their Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any present or former officers, managers and / or directors (each, a “D&O Indemnified Person”) or (ii) permit the board of directors or board of managers, as applicable, of the Blocker or Fairway Group Company to make a determination not to indemnify any such D&O Indemnified Person except in the case of fraud, willful misconduct or gross negligence (in each case, unless and to the extent required by Law); provided, however, that nothing other obligations provided for in this Section 7.7(a) shall prohibit Purchaser from liquidating and/or dissolving, or permitting the liquidation and/or dissolution of, any Blocker or any Fairway Group Company following the Closing9.01(a). (b) In the event that the Purchaser, the Blockers, the Company, any of the Operating Subsidiaries Acquired Entities or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is 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 or stock or other assets equity interests to any Person, then, then and in each such case, the Purchaser shall cause ensure that proper provision to shall be made so that the applicable successors and assigns of the Purchaser or transferees expressly the Acquired Entities, as the case may be (or their respective successors and assigns), shall assume the obligations set forth in this Section 7.79.01. (c) The Representative (on behalf Seller shall, or shall cause its Affiliates to, obtain at its or their expense a “tail” directors’ and officers’ liability insurance policy, effective for a period of at least six years from the Closing Date, for the benefit of the Sellers) agrees to pay the fees Acquired Entities or any of the Independent Directors (as defined in the Organizational Documents of those Operating Subsidiaries) subject to the Securitization Indebtedness) to the extent such Independent Directors are required to be retained in accordance with such Organization Documents ortheir officers and directors, if sooner, until such time as the Independent Directors are no longer serving in such capacitycase may be, with respect to claims arising from facts or events that occurred on or before the Closing Date.

Director and Officer Liability; Indemnification. (a) From and after the Closing, Xxxxxxxxx agrees that it shall indemnify and hold harmless each present and former director and officer of (x) each Target Company (the “Company Indemnified Parties”) and (y) Purchaser (the “Purchaser Indemnified Parties” and together with the Company Indemnified Parties, the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent that the Target Companies or Purchaser, as the case may be, would have been permitted under applicable Law and its respective certificate of incorporation, certificate of formation, bylaws, limited liability company agreement or other organizational documents in effect on the date of this Agreement to indemnify such D&O Indemnified Parties (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, Purchaser shall, and shall cause its Subsidiaries to (i) maintain provisions in its Organizational Documents concerning the indemnification and exoneration (including provisions relating to expense advancement) of Purchaser’s and its Subsidiaries’ (including the Target Companies’) former and current officers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the Organizational Documents of the Target Companies, Purchaser or their respective Subsidiaries, as applicable, in each case, as of the date of this Agreement, and (ii) not amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law. (b) For a period of six (6) years after from the Closing, Purchaser shall notmaintain in effect directors’ and officers’ liability insurance covering those Persons who are currently covered by Purchaser’s, the Target Companies’ or their respective Subsidiaries’ directors’ and officers’ liability insurance policies (true, correct and complete copies of which have been heretofore made available to Purchaser or its agents or representatives) on terms not less favorable than the terms of such current insurance coverage, except that in no event shall not permit Purchaser be required to pay an annual premium for such insurance in excess of three hundred percent (300%) of the Blockers aggregate annual premium payable by Purchaser or the Fairway Group Companies to, (i) amend, repeal or modify any provision in any of their Organizational Documents relating to the exculpation, indemnification or advancement of expenses of any present or former officers, managers and / or directors (each, a “D&O Indemnified Person”) or (ii) permit the board of directors or board of managersTarget Companies, as applicableapplicable (whichever premium being higher), of for such insurance policy for the Blocker or Fairway Group Company to make a determination not to indemnify any such D&O Indemnified Person except in year ended December 31, 2021 (the case of fraud, willful misconduct or gross negligence (in each case, unless and to the extent required by Law“Maximum Annual Premium”); provided, that, if the annual premiums of such insurance coverage exceed the Maximum Annual Premium, then Purchaser shall be obligated to obtain a policy with the greatest coverage available for a cost not exceeding the Maximum Annual Premium from an insurance carrier with the same or better credit rating as Purchaser’s or the Target Companies’ current directors’ and officers’ liability insurance carrier; provided, however, that nothing in (i) Purchaser may cause coverage to be extended under the current directors’ and officers’ liability insurance by obtaining a six (6) year “tail” policy containing terms not materially less favorable than the terms of such current insurance coverage with respect to claims existing or occurring at or prior to the Closing and (ii) if any claim is asserted or made within such six (6) year period, any insurance required to be maintained under this Section 7.7(a) 5.14 shall prohibit Purchaser from liquidating and/or dissolving, or permitting be continued in respect of such claim until the liquidation and/or dissolution of, any Blocker or any Fairway Group Company following the Closingfinal disposition thereof. (bc) Notwithstanding anything contained in this Agreement to the contrary, this Section 5.14 shall survive the consummation of the Transactions indefinitely and shall be binding, jointly and severally, on Purchaser and all successors and assigns of Purchaser. In the event that Purchaser, the Blockers, the Company, any of the Operating Subsidiaries Target Companies or any of their respective successors or assigns (i) consolidates with or merges into any other Person and is 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 other assets to any Person, then, and in each such case, Purchaser shall cause ensure that proper provision to shall be made so that the applicable successors and assigns or transferees expressly assume of Purchaser shall succeed to the obligations set forth in this Section 7.75.14. (cd) The Representative (on behalf On the Closing Date, Purchaser shall enter into customary indemnification agreements reasonably satisfactory to Seller and Purchaser with the post-Closing directors and officers of the Sellers) agrees to pay the fees of the Independent Directors (as defined in the Organizational Documents of those Operating Subsidiaries) subject to the Securitization Indebtedness) to the extent such Independent Directors are required Purchaser, which indemnification agreements shall continue to be retained in accordance with such Organization Documents or, if sooner, until such time as effective following the Independent Directors are no longer serving in such capacityClosing.