Common use of Directors and Officers Liability Clause in Contracts

Directors and Officers Liability. (a) PECO and PECO OP (the “D&O Indemnifying Parties”) shall honor and fulfill in all respects the obligations of the Company to the fullest extent permissible under applicable Law, under any charter, bylaws, limited liability company agreement, partnership agreement or other similar organizational documents or agreements of the Acquired Companies (collectively, the “Acquired Company Organizational Documents”) and under any indemnification or other similar agreements in effect on the date hereof (the “Indemnification Agreements”) to the individuals (including, all managers, directors, officers, trustees, agents and fiduciaries of any Acquired Company acting in such capacity) covered by such Acquired Company Organizational Documents or Indemnification Agreements (collectively, the “D&O Indemnified Parties”) arising out of or relating to actions or omissions in their capacity as such occurring at or prior to the Company Merger Effective Time, including in connection with the approval of this Agreement and the Transactions. The D&O Indemnifying Parties agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing now existing in favor of any D&O Indemnified Party provided under any Acquired Company Organizational Document or any Indemnification Agreement, in each case, which are in effect as of the date hereof, shall survive the Closing and shall continue in full force and effect in accordance with their respective terms. For a period of six (6) years from the Closing, PECO and PECO OP agree that the Acquired Company Organizational Documents shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party, unless such modification shall be required by applicable Law, and then only to the minimum extent required by applicable Law. (b) Without limiting the provisions of Section 6.4(a), for a period of six (6) years after the Company Merger Effective Time, PECO (but only to the extent the D&O Indemnified Parties would be permitted to be indemnified by the Company under the Acquired Company Organizational Documents and applicable law) shall: (i) indemnify and hold harmless each D&O Indemnified Party against and from any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any action or omission or alleged action or omission in such D&O Indemnified Party’s capacity as such, or (B) this Agreement and any of the Transactions; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon receipt, to the extent required by applicable law, of (A) an undertaking by or on behalf of such D&O Indemnified Party to repay such amount if it shall ultimately be determined that such D&O Indemnified Party is not entitled to be indemnified and (B) an affirmation by the D&O Indemnified Party of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification. Notwithstanding anything to the contrary contained in this Section 6.4 or elsewhere in this Agreement, PECO shall not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation of an D&O Indemnified Party for which indemnification may be sought under this Section 6.4(b) unless such settlement, compromise, consent or termination includes an unconditional release of such D&O Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation. (c) PECO has obtained, or shall obtain prior to the Closing, a prepaid insurance and indemnification policy (i.e., tail coverage) with a term of six (6) years covering each D&O Indemnified Party that provides coverage, subject to such policy’s terms and conditions, for matters occurring prior to the Closing (the “D&O Tail Policy”) that is no less favorable than the applicable Acquired Company’s existing policy (true, correct and complete copies of which have been previously provided to PECO prior to the date hereof) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, that the premium for such D&O Tail Policy shall not exceed three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement. (d) If any of PECO or PECO OP or any of their respective successors or assigns (i) consolidates with or merges with or into any other Person and shall not be the continuing or surviving company, partnership or other entity of such consolidation or merger or (ii) liquidates, dissolves or winds-up, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of PECO or PECO OP, as applicable, assume the obligations set forth in this Section 6.4. (e) The provisions of this Section 6.4 are intended to be for the express benefit of, and shall be enforceable by, each D&O Indemnified Party (who are intended to be third party beneficiaries of this

Directors and Officers Liability. (a) PECO For a period of six years after the Closing Date, Parent will cause the Surviving Entity to fulfill and PECO OP (the “D&O Indemnifying Parties”) shall honor and fulfill in all respects the obligations of the Company to each current (as of immediately prior to the fullest extent permissible under applicable LawEffective Time) and each former director, under any charterofficer, bylaws, limited liability company agreement, partnership agreement employee or other similar organizational documents or agreements agent of the Acquired Companies Company (collectivelyeach, the a “Acquired Company Organizational DocumentsCovered Person”) and under relating to the indemnification thereof, pursuant to any indemnification provisions under the Charter Documents or other similar agreements any indemnification agreement as in effect on the date hereof Agreement Date (the “Indemnification Agreements”) to the individuals (including, all managers, directors, officers, trustees, agents and fiduciaries of any Acquired Company acting in such capacity) covered by such Acquired Company Organizational Documents or Indemnification Agreements (collectively, the “D&O Indemnified Parties”) arising out of or including provisions relating to actions or omissions in their capacity as such occurring at or prior to the Company Merger Effective Timecontributions, including in connection with the approval advancement of this Agreement expenses and the Transactions. The D&O Indemnifying Parties agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing now existing in favor of any D&O Indemnified Party provided under any Acquired Company Organizational Document or any Indemnification Agreementlike), in each case, which are in effect as of that have been made available to Parent (such obligations, the date hereof“Company Indemnification Obligations”), shall survive the Closing and shall continue in full force and effect in accordance with their respective terms. For a period of six (6) years from the Closing, PECO and PECO OP agree that the Acquired Company Organizational Documents shall not be amended, repealed or otherwise modified in subject to any manner that would adversely affect the rights thereunder of any D&O Indemnified Party, unless such modification shall be required limitations imposed by applicable Law. The provisions of this Section 6.4 (i) are intended to be for the benefit of, and then only to will be enforceable by, each Covered Person, and each such Covered Person’s heirs, legatees, successors, and assigns (and the minimum extent required by applicable LawParties expressly agree that such Persons will be third-party beneficiaries of this Section 6.4), and (ii) will survive the consummation of the Mergers. (b) Without limiting Parent shall be under no obligation to maintain the provisions existence of Section 6.4(a), the Surviving Entity for a any specified period of six (6) years after following the Company Merger Second Effective Time, PECO (but only to the extent the D&O Indemnified Parties would be permitted to be indemnified by the Company under the Acquired Company Organizational Documents and applicable law) shall: (i) indemnify and hold harmless each D&O Indemnified Party against and from any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any action or omission or alleged action or omission in such D&O Indemnified Party’s capacity as such, or (B) this Agreement and any of the Transactions; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon receipt, to the extent required by applicable law, of (A) an undertaking by or on behalf of such D&O Indemnified Party to repay such amount if it shall ultimately be determined that such D&O Indemnified Party is not entitled to be indemnified and (B) an affirmation by the D&O Indemnified Party of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification. Notwithstanding anything to the contrary contained in this Section 6.4 or elsewhere in this Agreement, PECO shall not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation of an D&O Indemnified Party for which indemnification may be sought under this Section 6.4(b) unless such settlement, compromise, consent or termination includes an unconditional release of such D&O Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation. (c) PECO has obtained, or shall obtain prior to the Closing, a prepaid insurance and indemnification policy (i.e., tail coverage) with a term of six (6) years covering each D&O Indemnified Party that provides coverage, subject to such policy’s terms and conditions, for matters occurring prior to the Closing (the “D&O Tail Policy”) that is no less favorable than the applicable Acquired Company’s existing policy (true, correct and complete copies of which have been previously provided to PECO prior to the date hereof) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, however, that if the premium for such D&O Tail Policy shall not exceed three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement. (d) If any of PECO or PECO OP or any of their respective successors or assigns (i) consolidates with or merges with or into any other Person and shall not be the continuing or surviving company, partnership or other entity of such consolidation or merger or (ii) liquidates, dissolves or winds-up, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision Surviving Entity shall be made so that the successors and assigns dissolved, Parent or an Affiliate of PECO or PECO OP, as applicable, Parent shall assume the obligations set forth in this Section 6.4. (ec) The provisions of this Section 6.4 are intended to be Any amounts paid (for the express benefit ofavoidance of doubt, and to the extent not recovered or recoverable under the Tail Policy) by Parent, the Surviving Corporation or the Surviving Entity, or any of their respective successors or assigns, to any Covered Persons in respect of the Company Indemnification Obligations (such amounts, “Company Indemnification Obligation Payments”) shall be enforceable by, each D&O Indemnified Party (who are intended Damages to be third party beneficiaries of thiswhich Parent is entitled to recover pursuant to Article 10.

Directors and Officers Liability. (a) PECO The Parent, the Merger Subsidiary and PECO OP (the “D&O Indemnifying Parties”) shall honor and fulfill in all respects the obligations of the Company to the fullest extent permissible under applicable Law, under any charter, bylaws, limited liability company agreement, partnership agreement or other similar organizational documents or agreements of the Acquired Companies (collectively, the “Acquired Company Organizational Documents”) and under any indemnification or other similar agreements in effect on the date hereof (the “Indemnification Agreements”) to the individuals (including, all managers, directors, officers, trustees, agents and fiduciaries of any Acquired Company acting in such capacity) covered by such Acquired Company Organizational Documents or Indemnification Agreements (collectively, the “D&O Indemnified Parties”) arising out of or relating to actions or omissions in their capacity as such occurring at or prior to the Company Merger Effective Time, including in connection with the approval of this Agreement and the Transactions. The D&O Indemnifying Parties agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing now all limitations on liability existing in favor of any D&O Indemnified Party Indemnitee (as defined below) as provided under any Acquired in the Certificate of Incorporation or By-laws of the Company Organizational Document and the applicable organizational documents of its Subsidiaries or any Indemnification Agreement, in each case, which are in effect Indemnity Agreement (as of the date hereof, defined below) shall survive the Closing Merger and shall continue in full force and effect. To the extent permitted by (i) the Delaware General Corporation Law (or the applicable state corporation or limited liability company laws as to any Subsidiary that is not formed under the laws of the State of Delaware), (ii) the organizational documents of the Company or the Subsidiary, as applicable, or (iii) any agreement providing for indemnification by the Company or any Subsidiary of the Company of any Indemnitee in effect on the date of this Agreement (including any indemnity provisions contained in any agreement providing for the registration of securities) (each, an "Indemnity Agreement"), advancement of Expenses (as defined below) pursuant to this Section 6.11 shall be mandatory rather than permissive, and the Surviving Corporation and the Parent shall advance Costs (as defined -61- below) in connection with such indemnification. The Parent shall, and shall cause the Surviving Corporation to, expressly assume and honor in accordance with their respective terms. For a period of six (6) years from the Closing, PECO and PECO OP agree that the Acquired Company Organizational Documents shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of any D&O Indemnified Party, unless such modification shall be required by applicable Law, and then only to the minimum extent required by applicable Lawterms all Indemnity Agreements. (b) Without limiting In addition to the provisions of other rights provided for in this Section 6.4(a)6.11 and not in limitation thereof, for a period of six (6) years from and after the Company Merger Effective Time, PECO (but only the Parent shall, and shall cause the Surviving Corporation to, to the fullest extent the D&O Indemnified Parties would be permitted to be indemnified by the Company under the Acquired Company Organizational Documents and applicable law) shall: , (i) indemnify and hold harmless each D&O Indemnified Party the individuals who on or prior to the Effective Time were officers, directors, managers or employees of the Company or any of its Subsidiaries, and the heirs, executors, trustees, fiduciaries and administrators of such officers, directors, managers or employees (collectively, the "Indemnitees") against and from any costs or expenses all losses, Expenses (including reasonable attorneys’ feesas hereinafter defined), judgments, fines, losses, claims, damages, liabilities and liabilities, judgments, or amounts paid in settlement (collectively, "Costs") in respect to any threatened, pending or completed claim, action, suit or proceeding, whether criminal, civil, administrative or investigative based on, or arising out of or relating to the fact that such person is or was a director, officer, manager or employee of the Company or any of its Subsidiaries and arising out of acts or omissions occurring on or prior to the Effective Time (excluding acts or omissions in connection with this Agreement and the transactions contemplated hereby) (an "Indemnifiable D&O Claim") and (ii) advance to such Indemnitees all Expenses incurred in connection with any claimIndemnifiable D&O Claim promptly after receipt of reasonably detailed statements therefor; provided, actionthat, suitexcept as otherwise provided pursuant to any Indemnity Agreement, proceeding or investigation, whether civil, criminal, administrative or investigative, the person to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any action or omission or alleged action or omission in such D&O Indemnified Party’s capacity as such, or (B) this Agreement and any of the Transactions; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon receipt, whom Expenses are to the extent required by applicable law, of (A) be advanced provides an undertaking by or on behalf of such D&O Indemnified Party to repay such amount advances if it shall is ultimately be determined that such D&O Indemnified Party person is not entitled to indemnification from the Parent or the Surviving Corporation. In the event any Indemnifiable D&O Claim is asserted or made within such six-year period, all rights to indemnification and advancement of Expenses in respect of any such Indemnifiable D&O Claim shall continue until such Indemnifiable D&O Claim is disposed of or all judgments, orders, decrees or other rulings in connection with such Indemnifiable D&O Claim are fully satisfied; provided, however, that the Parent shall not be indemnified and liable for any settlement effected without its written consent (B) an affirmation by the D&O Indemnified Party of his which consent shall not be unreasonably withheld or her good faith belief that he or she has met the standard of conduct necessary for indemnificationdelayed). Notwithstanding anything Except as otherwise may be provided pursuant to the contrary contained in this Section 6.4 or elsewhere in this any Indemnity Agreement, PECO shall not settle or compromise or consent to the entry of any judgment or otherwise seek termination Indemnitees as a group may retain only one law firm with respect to any claim, action, suit, proceeding or investigation of an D&O Indemnified Party for which indemnification may be sought under this Section 6.4(b) unless such settlement, compromise, consent or termination includes an unconditional release of such D&O Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation. (c) PECO has obtained, or shall obtain prior each related matter except to the Closingextent there is, in the opinion of counsel to an Indemnitee, under applicable standards of professional conduct, a prepaid insurance and indemnification policy (i.e., tail coverage) with a term conflict on any significant issue between positions of six (6) years covering each D&O Indemnified Party that provides coverage, subject to such policy’s terms and conditions, for matters occurring prior to any two or more Indemnitees. For the Closing (the “D&O Tail Policy”) that is no less favorable than the applicable Acquired Company’s existing policy (true, correct and complete copies of which have been previously provided to PECO prior to the date hereof) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, that the premium for such D&O Tail Policy shall not exceed three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement. (d) If any of PECO or PECO OP or any of their respective successors or assigns (i) consolidates with or merges with or into any other Person and shall not be the continuing or surviving company, partnership or other entity of such consolidation or merger or (ii) liquidates, dissolves or winds-up, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of PECO or PECO OP, as applicable, assume the obligations set forth in this Section 6.4. (e) The provisions purposes of this Section 6.4 are intended 6.11, "Expenses" shall include reasonable attorneys' fees and all other costs, charges and expenses paid or incurred in connection with investigating, defending, being a witness in or participating in (including on appeal), or preparing to defend, be for the express benefit of, and shall be enforceable by, each a witness in or participate in any Indemnifiable D&O Indemnified Party (who are intended to be third party beneficiaries of thisClaim.

Directors and Officers Liability. (a) PECO and PECO OP (the “D&O Indemnifying Parties”) shall honor and fulfill in all respects the obligations of the Company to the fullest extent permissible under applicable Law, under any charter, bylaws, limited liability company agreement, partnership agreement or other similar organizational documents or agreements of the Acquired Companies (collectively, the “Acquired Company Organizational Documents”) and under any indemnification or other similar agreements in effect on the date hereof (the “Indemnification Agreements”) to the individuals (including, all managers, directors, officers, trustees, agents and fiduciaries of any Acquired Company acting in such capacity) covered by such Acquired Company Organizational Documents or Indemnification Agreements (collectively, the “D&O Indemnified Parties”) arising out of or relating to actions or omissions in their capacity as such occurring at or prior to the Company Merger Effective Time, including in connection with the approval of this Agreement and the Transactions. The D&O Indemnifying Parties agree SolarWinds agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Closing now existing in favor of any D&O Indemnified Party provided under any Acquired Company Organizational Document or any Indemnification Agreement, in each case, which are in effect as of the date hereof, of this Agreement under (i) any Confio Charter Document or (ii) any written agreement pursuant to which Confio is a party providing for indemnification in favor of the current and former directors and/or officers of Confio shall survive the Closing and shall continue in full force and effect in accordance with their respective terms. For a period of six (6) years from terms following the Closing, PECO and PECO OP agree that SolarWinds shall, and shall cause the Acquired Company Organizational Documents shall not be amendedSurviving Corporation to, repealed or otherwise modified in any manner that would adversely affect fulfill and honor such obligations to the rights thereunder of any D&O Indemnified Party, unless such modification shall be required maximum extent permitted by applicable Law, and then only to the minimum extent required by applicable Law. (b) Without limiting the provisions of Section 6.4(a), for a period of six (6) years after the Company Merger Effective Time, PECO (but only to the extent the D&O Indemnified Parties would be permitted to be indemnified by the Company under the Acquired Company Organizational Documents and applicable law) shall: (i) indemnify and hold harmless each D&O Indemnified Party against and from any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages, liabilities and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, to the extent such claim, action, suit, proceeding or investigation arises out of or pertains to: (A) any action or omission or alleged action or omission in such D&O Indemnified Party’s capacity as such, or (B) this Agreement and any of the Transactions; and (ii) pay in advance of the final disposition of any such claim, action, suit, proceeding or investigation the expenses (including reasonable attorneys’ fees) of any D&O Indemnified Party upon receipt, to the extent required by applicable law, of (A) an undertaking by or on behalf of such D&O Indemnified Party to repay such amount if it shall ultimately be determined that such D&O Indemnified Party is not entitled to be indemnified and (B) an affirmation by the D&O Indemnified Party of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification. Notwithstanding anything to the contrary contained in this Section 6.4 or elsewhere in this Agreement, PECO shall not settle or compromise or consent to the entry of any judgment or otherwise seek termination with respect to any claim, action, suit, proceeding or investigation of an D&O Indemnified Party for which indemnification may be sought under this Section 6.4(b6.7(a) unless such settlement, compromise, consent or termination includes is intended to benefit each Person who was a director and/or an unconditional release officer of such D&O Indemnified Party from all liability arising out of such claim, action, suit, proceeding or investigation. (c) PECO has obtained, or shall obtain Confio prior to the Closing, a prepaid insurance and shall be binding on all successors of SolarWinds and Confio. SolarWinds hereby guarantees the payment and performance by the Surviving Corporation of the indemnification policy (i.e., tail coverageand other obligations pursuant to this Section 6.7(a) with a term of six (6) years covering each D&O Indemnified Party and the Confio Charter Documents. In the event that provides coverage, subject to such policy’s terms and conditions, for matters occurring prior to the Closing (the “D&O Tail Policy”) that is no less favorable than the applicable Acquired Company’s existing policy (true, correct and complete copies of which have been previously provided to PECO prior to the date hereof) or, if substantially equivalent insurance coverage is unavailableSolarWinds, the best available coverage; provided, that the premium for such D&O Tail Policy shall not exceed three hundred percent (300%) of the last annual premium paid prior to the date of this Agreement. (d) If any of PECO or PECO OP Surviving Corporation or any of their respective successors or assigns (ia) consolidates with or merges with or into any other Person and shall not be the continuing or surviving company, partnership or other entity Person of such consolidation or merger or (ii) liquidates, dissolves or winds-up, or transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors, assigns and transferees of SolarWinds or Confio or their respective successors and assigns of PECO or PECO OPassigns, as applicablethe case may be, assume the obligations set forth in this Section 6.46.7(a). (eb) Prior to the Closing, Confio shall obtain and fully pay for “tail” insurance policies 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 Confio’s current insurance carrier with respect to the directors’ and officers’ liability insurance in an amount and scope at least as favorable as Confio’s existing policies with respect to matters existing or occurring at or prior to the Closing Date. (c) The provisions of this Section 6.4 6.7 shall survive the Closing and are intended to be for the express benefit of, and shall be enforceable by, each D&O Indemnified Party current director and officer of Confio and his or her heirs and personal representatives, and nothing in this Agreement shall affect any indemnification rights that any such current director or officer and his or her heirs and personal representatives may have under the Confio Charter Documents or any Contract or applicable Law. The obligations of SolarWinds under this Section 6.7 shall not be terminated or modified in such a manner as to adversely affect any indemnitee to whom this Section 6.7 applies without the express written consent of such affected indemnitee (who are intended it being expressly agreed that the indemnitees to whom this Section 6.7 applies shall be third party beneficiaries of thisthis Section 6.7).