Common use of Director & Officer Indemnification Clause in Contracts

Director & Officer Indemnification. (a) For a period of six (6) years after the Effective Time, Buyer will cause the Surviving Company to indemnify, defend and hold harmless, to the same extent required by the certificate of formation of the Company and the Company LLC Agreement as in effect on the date of this Agreement and as permitted under applicable Law, all past and present directors and officers of the Company and any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “Company Indemnified Party”) against any liabilities, damages, costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any Proceeding (whether asserted before or after the Effective Time) arising out of acts or omissions occurring at or prior to the Effective Time in connection with such Company Indemnified Party having served as a director or officer of the Company or a Company Subsidiary or having served at the request of the Company as a director, officer or employee of any other corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other business, and, to the same extent that such Company Indemnified Parties have the right to advancement of expenses from the Company as of the date of this Agreement, to provide advancement of expenses to any such Company Indemnified Party, subject to receipt of an undertaking from such Company Indemnified Party to repay such advanced amounts if it is determined by a court of competent jurisdiction in a final judgment that such Company Indemnified Party was not entitled to indemnification. Parent shall cause the Surviving Company (or any successor) to include and maintain in effect, for a period of six (6) years after the Effective Time, the provisions regarding indemnification and elimination of liability of directors that are in the Company’s Constituent Documents as in effect as of the date of this Agreement. Parent shall cause the Surviving Company to honor all indemnification agreements with any Company Indemnified Party set forth on Section 5.5(a) of the Company Disclosure Letter to the extent such agreements remain in effect at the Effective Time. (b) At the Closing, the Buyer shall, at its expense, purchase tail coverage under the Company’s current directors’ and officers’ liability insurance policy for the benefit of each Company Indemnified Party, which provides coverage for period of six (6) years after the Effective Time for acts or omissions occurring on or prior to the Effective Time with terms and conditions which are not less advantageous to such Company Indemnified Parties than the terms and conditions of the existing directors’ and officers’ liability insurance policy of the Company. Notwithstanding the foregoing, in no event shall Buyer be required to expend for such tail coverage an amount in excess of $60,000 (the “Insurance Amount”), and if the Buyer is unable to maintain or obtain the insurance called for by this Section 5.5(b) for an amount equal to or less than the Insurance Amount, the Buyer shall obtain as much comparable insurance as may be available for the Insurance Amount. (c) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties, rights and other assets to any Person, then, in each such case to the extent so required, Parent shall cause proper provision to be made so that such successor or assign of the Surviving Company assumes the obligations set forth in this Section 5.5. (d) The provisions of this Section 5.5 are intended to be for the benefit of, and will be enforceable by, the Company Indemnified Parties following the Closing and are in addition to, and not in substitution for, any other rights to indemnification, advancement or contribution that any such Person may have by Law, Contract or otherwise.

Director & Officer Indemnification. (a) For a period of six (6) years after the Effective TimeClosing, Buyer will cause the Surviving Company to indemnify, defend and hold harmless, to the same extent required by the certificate Constituent Documents of formation of Seller and the Company and the Company LLC Agreement as in effect on the date of this Agreement and as permitted under applicable Law, all past and present managers, directors and officers of the Company and any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “Company Indemnified Party”) against any liabilities, damages, costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any Proceeding Claims (whether asserted before or after the Effective TimeClosing) arising out of acts or omissions occurring at or prior to the Effective Time Closing in connection with such Company Indemnified Party having served as a manager, director or officer of the Company or a Company Subsidiary or having served at the request of the Company as a manager, director, officer or employee of any other corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other business, and, to the same extent that such Company Indemnified Parties have the right to advancement of expenses from the Company as of the date of this Agreement, to provide advancement of expenses to any such Company Indemnified Party, subject to receipt of an undertaking from such Company Indemnified Party to repay such advanced amounts if it is determined by a court of competent jurisdiction in a final judgment that such Company Indemnified Party was not entitled to indemnification. Parent Buyer shall cause the Surviving Company (or any successor) to include and maintain in effect, for a period of six (6) years after the Effective TimeClosing Date, the provisions regarding indemnification and elimination of liability of managers, officers and directors that are in the Company’s Constituent Documents as in effect as of the date of this Agreement. Parent Buyer shall cause the Surviving Company to honor all indemnification agreements with any Company Indemnified Party in effect as of the date of this Agreement only to the extent such indemnification agreements are set forth on Section 5.5(a4.3(a) of the Company Disclosure Letter to the extent such agreements remain in effect at the Effective TimeSchedules. (b) At Within five (5) Business Days following the ClosingClosing Date, the Buyer Company shall, and at its expensethe expense of Buyer, purchase tail coverage under the Company’s current directors’ and officers’ liability insurance policy with alternative insurers that have a rating of at least A- with AM Best for the benefit of each Company Indemnified Party, which provides coverage for a period of six (6) years after the Effective Time Closing for acts or omissions occurring on or prior to the Effective Time Closing with terms and conditions which are not less advantageous to such Company Indemnified Parties than the terms and conditions of the existing directors’ and officers’ liability insurance policy of the Company. Notwithstanding the foregoing, in no event shall Buyer be required to expend for such tail coverage an amount in excess of $60,000 (the “Insurance Amount”), and if the Buyer is unable to maintain or obtain the insurance called for by this Section 5.5(b) for an amount equal to or less than the Insurance Amount, the Buyer shall obtain as much comparable insurance as may be available for the Insurance Amount. (c) In the event that the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties, rights and other assets to any Person, then, in each such case to the extent so required, Parent Buyer shall cause proper provision to be made so that such successor or assign of the Surviving Company assumes the obligations set forth in this Section 5.54.3. (d) The provisions of this Section 5.5 4.3 are intended to be for the benefit of, and will be enforceable by, the Company Indemnified Parties following the Closing and are in addition to, and not in substitution for, any other rights to indemnification, advancement or contribution that any such Person may have by Law, Contract or otherwise.

Director & Officer Indemnification. (a) For a period of six (6) years after the Effective Time, Buyer will cause the Surviving Company Corporation to indemnify, defend and hold harmless, to the same extent required by the certificate of formation incorporation and bylaws of the Company and the Company LLC Agreement as in effect on the date of this Agreement and as permitted under applicable Law, all past and present directors and officers of the Company and any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “Company Indemnified Party”) against any liabilities, damages, costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any Proceeding (whether asserted before or after the Effective Time) arising out of acts or omissions occurring at or prior to the Effective Time in connection with such Company Indemnified Party having served as a director or officer of the Company or a Company Subsidiary or having served at the request of the Company as a director, officer or employee of any other corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other business, and, to the same extent that such Company Indemnified Parties have the right to advancement of expenses from the Company as of the date of this Agreement, to provide advancement of expenses to any such Company Indemnified Party, subject to receipt of an undertaking from such Company Indemnified Party to repay such advanced amounts if it is determined by a court of competent jurisdiction in a final judgment that such Company Indemnified Party was not entitled to indemnification. Parent shall cause the Surviving Company Corporation (or any successor) to include and maintain in effect, for a period of six (6) years after the Effective Time, the provisions regarding indemnification and elimination of liability of directors that are in the Company’s Constituent Documents as in effect as of the date of this Agreement. Parent shall cause the Surviving Company Corporation to honor all indemnification agreements with any Company Indemnified Party in effect as of the date of this Agreement only to the extent such indemnification agreements are set forth on in Section 5.5(a5.6(a) of the Company Disclosure Letter to the extent such agreements remain in effect at the Effective TimeLetter. (b) At The Company shall, at or prior to the Closing, at the Buyer shall, at its expensedirection of the Buyer, purchase tail coverage under the Company’s current directors’ and officers’ liability insurance policy for the benefit of each Company Indemnified Party, which provides coverage for period of six (6) years after the Effective Time for acts or omissions occurring on or prior to the Effective Time with terms and conditions which are not less advantageous to such Company Indemnified Parties than the terms and conditions of the existing directors’ and officers’ liability insurance policy of the Company. Notwithstanding the foregoing, in no event shall Buyer be required to expend for The expense of such tail coverage an amount in excess of $60,000 (the “Insurance Amount”), and if the Buyer is unable to maintain or obtain the insurance called for by this Section 5.5(b) for an amount equal to or less than the Insurance Amount, the Buyer shall obtain as much comparable insurance as may be available for the Insurance Amounta Transaction Expense hereunder. (c) In the event that the Surviving Company Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties, rights and other assets to any Person, then, in each such case to the extent so required, Parent shall cause proper provision to be made so that such successor or assign of the Surviving Company Corporation assumes the obligations set forth in this Section 5.55.6. (d) The provisions of this Section 5.5 5.6 are intended to be for the benefit of, and will be enforceable by, the Company Indemnified Parties following the Closing and are in addition to, and not in substitution for, any other rights to indemnification, advancement or contribution that any such Person may have by Law, Contract or otherwise.

Director & Officer Indemnification. (a) For a period of six (6) years after from the Effective TimeClosing Date, Buyer will cause the Surviving Company to shall indemnify, defend and hold harmlessharmless each individual who is now, or has been at any time prior to the Closing Date, an officer, director or employee of the Company or the Seller (collectively, the “Company Indemnified Agents”) against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement with the approval of the Company (which approval shall not be unreasonably delayed, conditioned, or withheld if such settlement does not require material non-monetary obligations) of or in connection with any claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such individual is or was a director, officer or employee of the Company or the Seller and arising out of actions or omissions, occurring at or prior to the Closing Date and whether asserted or claimed prior to, or at or after, the Closing Date, but only to the extent the Company would be required to do so as of the date of this Agreement pursuant to its Charter or Governing Documents or pursuant to a Contract between the Company and such Company Indemnified Agents, as set forth on Schedule 5.10; provided, that the Company shall only be required to indemnify a Company Indemnified Agent pursuant to this Section 5.10 to the extent permitted under the Law of the state of its incorporation to indemnify directors, officers and employees, as the case may be, or those of a direct or indirect subsidiary (and the Company will pay expenses in advance of the final disposition of any such action or proceeding to each Company Indemnified Agent to the fullest extent permitted by Law, subject to Section 5.10(b) with regard to expenses for counsel, to the same extent that the Company would be required by to do so as of the certificate date of formation this Agreement). In addition, the Charter and Governing Documents of the Company and their successors and assigns shall, for six (6) years following the Closing Date, contain provisions with respect to indemnification no less favorable to the individuals who were officers, directors and employees at or prior to the Closing Date than those in effect in the Governing Documents of the Company LLC Agreement with respect to current officers, directors and employees as in effect on the date of this Agreement and as permitted under applicable Law, all past and present directors and officers of the Company and any Company Subsidiary (each, together with such person’s heirs, executors or administrators, a “Company Indemnified Party”) against any liabilities, damages, costs or expenses (including reasonable attorneys’ fees and expenses) incurred in connection with any Proceeding (whether asserted before or after the Effective Time) arising out of acts or omissions occurring at or prior to the Effective Time in connection with such Company Indemnified Party having served as a director or officer of the Company or a Company Subsidiary or having served at the request of the Company as a director, officer or employee of any other corporation, limited liability company, partnership, joint venture, employee benefit plan, trust or other business, and, to the same extent that such Company Indemnified Parties have the right to advancement of expenses from the Company as of the date of this Agreement, to provide advancement of expenses to any such Company Indemnified Party, subject to receipt of an undertaking from such Company Indemnified Party to repay such advanced amounts if it is determined by a court of competent jurisdiction in a final judgment that such Company Indemnified Party was not entitled to indemnification. Parent shall cause the Surviving Company (or any successor) to include and maintain in effect, for a period of six (6) years after the Effective Time, the provisions regarding indemnification and elimination of liability of directors that are in the Company’s Constituent Documents as in effect as of the date of this Agreement. Parent shall cause the Surviving Company to honor all indemnification agreements with any Company Indemnified Party set forth on Section 5.5(a) of the Company Disclosure Letter to the extent such agreements remain in effect at the Effective Time. (b) At the Closing, the Buyer shall, at its expense, purchase tail coverage under the Company’s current directors’ and officers’ liability insurance policy for the benefit of each Each Company Indemnified PartyAgent under this Section 5.10 will, which provides coverage for period of six (6) years promptly after the Effective Time for acts receipt of notice of the commencement of any action or omissions occurring on or prior other proceeding against such Company Indemnified Agent in respect of which indemnity may be sought from the Company under this Section 5.10 notify the Company in writing of the commencement thereof. The failure of any Company Indemnified Agent to notify the Effective Time with terms and conditions Company of any such action shall not relieve such Company from any liability which are not less advantageous it may have to such Company Indemnified Parties than Agent, unless, and only to the terms extent that, such failure actually prejudices the Company. In case any such action or other proceeding shall be brought against any Company Indemnified Agent and conditions it shall notify the Company of the existing directors’ and officers’ liability insurance policy of commencement thereof, the CompanyCompany shall be entitled to participate therein and, to the extent that it may wish, to assume the defense thereof, with counsel reasonably satisfactory to such Company Indemnified Agent; provided, however, that any Company Indemnified Agent may, at its own expense, retain separate counsel to participate in such defense. Notwithstanding the foregoing, in no event any action or proceeding in which both the Company and a Company Indemnified Agent are, or are reasonably likely to become, a party, such Company Indemnified Agent shall Buyer have the right to employ one separate counsel at the Company’s expense and to control its own defense of such action or proceeding if, in the reasonable written opinion of counsel to such Company Indemnified Agent, any unwaivable conflict or potential unwaivable conflict exists between the Company and such Company Indemnified Agent that would make such separate representation advisable. The Company shall not, without the consent of the Company Indemnified Agent (such consent not to be required to expend for such tail coverage an amount in excess of $60,000 (the “Insurance Amount”unreasonably delayed, conditioned, or withheld), and if consent to the Buyer is unable entry of any judgment or enter into any settlement which does not include as an unconditional term thereof the giving by the claimant or plaintiff to maintain such Company Indemnified Agent of a release from all liability in respect to such claim or obtain litigation or which requires action by the insurance called for Company Indemnified Agent. The rights accorded to Company Indemnified Agents hereunder shall be in addition to any rights that any Company Indemnified Agent may have at common law, by this Section 5.5(b) for an amount equal to separate agreement or less than the Insurance Amount, the Buyer shall obtain as much comparable insurance as may be available for the Insurance Amountotherwise. (c) In For six (6) years from the event Closing Date, the Purchaser shall cause the Company to maintain “tail” officers’ and directors’ liability insurance covering the Persons who are presently covered by the Company’s officers’ and directors’ liability insurance policy (copies of which have been made available to the Purchaser in the VDR) with respect to actions and omissions occurring prior to the Closing Date (the “Run-Off Policy”), providing coverage from insurance carriers with the same or better credit ratings as the Company’s current insurance carrier with respect to officers’ and directors’ liability insurance and not materially less favorable (in coverage limits or otherwise) than provided by such insurance in effect on the date hereof; provided, that the Surviving total cost with respect to such policy shall not exceed 200% of the last annual premium paid therefor by the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or Surviving Company or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties, rights and other assets to any Person, then, in each such case prior to the extent so required, Parent shall cause proper provision to Execution Date and the Company will purchase the maximum amount of coverage that can be made so obtained for that such successor or assign of amount if the Surviving Company assumes the obligations set forth coverage described in this Section 5.5would cost in excess of that amount. The Purchaser shall cause the Company to pay any applicable premiums for such insurance. (d) The provisions of this Section 5.5 5.10 are intended to be for the benefit of, and will shall be enforceable by, each Company Indemnified Agent, his or her heirs and his or her Representatives. (e) For the avoidance of doubt, nothing in this Section 5.10 shall require the Company Indemnified Parties following to indemnify the Closing and are in addition toSeller, any Seller Owner, or their respective Affiliates for any claim for indemnification made pursuant to Section 9.1(d) of this Agreement, and not the Seller waives any rights it has to be indemnified by the Company for any payments made by the Seller or its Affiliates pursuant to Section 9.1(d) of this Agreement, in substitution foreach case, any other rights than with respect to indemnification, advancement or contribution that any such Person may have losses covered by Law, Contract or otherwisethe Run-Off Policy.