Common use of Directors and Officers Liability Clause in Contracts

Directors and Officers Liability. (a) PEGC I and PEGC I OP (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 a manager, director, officer, trustee, agent or fiduciary of any Contributed Company or any of its Subsidiaries and acting in its capacity as such (collectively, the “D&O Indemnified Parties“) as provided in under any charter, bylaws, limited liability company agreement, partnership agreement or other similar organizational documents or agreements of the Contributed Companies and their Subsidiaries (collectively, the “Contributed Company Organizational Documents”) and indemnification agreements of the Contributed Companies and/or their Subsidiaries shall survive the Closing and shall continue in full force and effect in accordance with their terms. For a period of six (6) years from the Closing, PEGC I and PEGC I OP agree that the Contributed Company Organizational Documents shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of D&O Indemnified Party, unless such modification shall be required by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) PEGC I OP 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 Contributed Company’s or such Subsidiary’s existing policy (true and complete copies which have been previously provided to PEGC I OP) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, that (i) the premium for such D&O Tail Policy shall not exceed 300% of the last annual premium paid prior to the date of this Agreement unless the Contributors agree to bear the incremental cost in excess thereof, and (ii) PEGC I OP and the Contributors (through an increase to Contribution Transaction Expenses) shall each bear 50% of the cost of the D&O Tail Policy. (c) If any of PEGC I or the PEGC I 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 PEGC I or the PEGC I OP, as applicable, assume the obligations set forth in this Section 6.20. (d) The provisions of this Section 6.20 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 Section 6.20), his or her heirs and his or her personal representatives, shall be binding on all successors and assigns of PEGC I, PEGC I OP and the Contributed Companies and their Subsidiaries and shall not be amended in a manner that is adverse to the D&O Indemnified Parties (including their successors, assigns and heirs) without the prior written consent of the D&O Indemnified Party (including the successors, assigns and heirs) affected thereby. The exculpation and indemnification provided for by this Section 6.20 shall not be deemed to be exclusive of any other rights to which a D&O Indemnified Party is entitled, whether pursuant to applicable Law, contract or otherwise. (e) Notwithstanding anything to the contrary in this Section 6.20, PEGC I and PEGC I OP shall have no obligation under this Agreement to indemnify or hold harmless any D&O Indemnified Party (i) in respect of any claim made by any Contributor Indemnitee against PEGC I OP under Article X hereof, or (ii) against obligations of such D&O Indemnifying Party to bear its portion of any indemnification obligations to the PEGC I Indemnitees under Article X hereof.

Directors and Officers Liability. (a) PEGC I and PEGC I OP (The Buyer agrees that the “D&O Indemnifying Parties“) agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to obligations set forth in the Closing now existing in favor of a manager, director, officer, trustee, agent or fiduciary of any Contributed Company or any of its Subsidiaries and acting in its capacity as such (collectively, the “D&O Indemnified Parties“) as provided in under any charter, bylaws, limited liability company agreement, partnership agreement or other similar Acquired Entities’ organizational documents or agreements of the Contributed Companies and their Subsidiaries (collectively, the “Contributed Company Organizational Documents”) and indemnification agreements of the Contributed Companies and/or their Subsidiaries shall survive the Closing and shall continue in full force and effect in accordance with their terms. For a period of six (6) years from the Closing, PEGC I and PEGC I OP agree that the Contributed Company Organizational Documents shall not be amended, repealed or otherwise modified for a period of six (6) years after the Closing in any manner that would adversely affect the rights thereunder of D&O Indemnified Party, unless such modification shall be required by applicable Law and then only any Person who on or prior to the minimum extent required by applicable LawClosing was a director or officer. (b) PEGC I OP has obtained The Seller Parties shall (i) maintain the current or shall obtainsubstantially equivalent policies of the directors’ and officers’ liability insurance (collectively, the “Current D&O Policy”; true and complete copies which have been previously provided to the Buyer) for six (6) years from the Closing Date covering each Person in the Acquired Entities covered by the Current D&O Policy for matters occurring prior to the ClosingClosing or, if substantially equivalent insurance coverage is unavailable, the best available coverage and (ii) if such coverage described in Section 6.3(b)(i) above is no longer maintained by the Seller Parties, then the Seller Parties shall obtain a prepaid insurance and indemnification policy (i.e., tail coverage) with a term of the balance of such six (6) years covering each Person covered by the Current D&O Indemnified Party Policy maintained by the Acquired Entities that provides coverage, subject to such policy’s terms and conditions, coverage for matters occurring prior to the Closing (the “D&O Tail Policy“”) that is no less favorable than the Contributed Company’s or such Subsidiary’s Acquired Entities’ existing policy (true and complete copies which have been previously provided to PEGC I OP) or, if substantially equivalent insurance coverage is unavailable, the best available coveragecoverage and shall provide the Buyer with written notice containing a copy of such D&O Tail Policy; provided, however, that (i) if the premium for such Seller Parties demonstrate to the Buyer that they have been unable to obtain the D&O Tail Policy at commercially reasonable rates despite using commercially reasonable efforts for a reasonable period of time, the Buyer shall not exceed 300% of the last annual premium paid prior to the date of this Agreement unless the Contributors agree to bear the incremental cost in excess thereof, and (ii) PEGC I OP and the Contributors (through an increase to Contribution Transaction Expenses) shall each bear 50% of be responsible for the cost of the D&O Tail Policy. (c) If any of PEGC I or the PEGC I 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 PEGC I or the PEGC I OP, as applicable, assume the obligations set forth in this Section 6.20. (d) The provisions of this Section 6.20 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 Section 6.20), his or her heirs and his or her personal representatives, shall be binding on all successors and assigns of PEGC I, PEGC I OP and the Contributed Companies and their Subsidiaries and shall not be amended in a manner Policy that is adverse to in excess of commercially reasonable rates (or Buyer may, at its option, waive the D&O Indemnified Parties (including their successors, assigns and heirs) without the prior written consent of the D&O Indemnified Party (including the successors, assigns and heirs) affected thereby. The exculpation and indemnification provided requirement for by this Section 6.20 shall not be deemed to be exclusive of any other rights to which a D&O Indemnified Party is entitled, whether pursuant to applicable Law, contract or otherwisesuch policy). (e) Notwithstanding anything to the contrary in this Section 6.20, PEGC I and PEGC I OP shall have no obligation under this Agreement to indemnify or hold harmless any D&O Indemnified Party (i) in respect of any claim made by any Contributor Indemnitee against PEGC I OP under Article X hereof, or (ii) against obligations of such D&O Indemnifying Party to bear its portion of any indemnification obligations to the PEGC I Indemnitees under Article X hereof.

Directors and Officers Liability. (a) PEGC I PECO and PEGC I 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 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 a manager, director, officer, trustee, agent or fiduciary of any Contributed D&O Indemnified Party provided under any Acquired Company Organizational Document or any of its Subsidiaries and acting Indemnification Agreement, in its capacity each case, which are in effect as such (collectively, the “D&O Indemnified Parties“) as provided in under any charter, bylaws, limited liability company agreement, partnership agreement or other similar organizational documents or agreements of the Contributed Companies and their Subsidiaries (collectivelydate hereof, the “Contributed Company Organizational Documents”) and indemnification agreements of the Contributed Companies and/or their Subsidiaries 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, PEGC I PECO and PEGC I PECO OP agree that the Contributed 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 Law, and then only to the minimum extent required by applicable Law. (b) PEGC I OP Without limiting the provisions of Section 6.4(a), for a period of six (6) years after the 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 obtained 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, 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 Contributed applicable Acquired Company’s or such Subsidiary’s existing policy (true true, correct and complete copies of which have been previously provided to PEGC I OPPECO prior to the date hereof) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, that (i) 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 unless the Contributors agree to bear the incremental cost in excess thereof, and (ii) PEGC I OP and the Contributors (through an increase to Contribution Transaction Expenses) shall each bear 50% of the cost of the D&O Tail PolicyAgreement. (cd) If any of PEGC I PECO or the PEGC I 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 PEGC I PECO or the PEGC I PECO OP, as applicable, assume the obligations set forth in this Section 6.206.4. (de) The provisions of this Section 6.20 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 Section 6.206.4), his or her heirs and his or her personal representatives, shall be binding on all successors and assigns of PEGC IPECO, PEGC I PECO OP and the Contributed Acquired Companies and their Subsidiaries and shall not be amended in a manner that is adverse to the D&O Indemnified Parties (including their respective successors, assigns and heirs) without the prior written consent of the D&O Indemnified Party (including including, if applicable, the successors, assigns and heirsheirs thereof) affected thereby. The exculpation and indemnification provided for by this Section 6.20 6.4 shall not be deemed to be exclusive of any other rights to which a D&O Indemnified Party is entitled, whether pursuant to applicable Law, contract Contract or otherwise. (e) Notwithstanding anything to the contrary in this Section 6.20, PEGC I and PEGC I OP shall have no obligation under this Agreement to indemnify or hold harmless any D&O Indemnified Party (i) in respect of any claim made by any Contributor Indemnitee against PEGC I OP under Article X hereof, or (ii) against obligations of such D&O Indemnifying Party to bear its portion of any indemnification obligations to the PEGC I Indemnitees under Article X hereof.

Directors and Officers Liability. (a) PEGC I Prior to the Closing, the Company shall have purchased an extended reporting period endorsement under the Company’s existing directors’ and PEGC I OP officers’ liability insurance coverage (the “D&O Indemnifying Parties“Tail”) agree that all rights to indemnification for the Company’s directors and exculpation from liabilities for acts or omissions occurring at or prior to the Closing now existing in favor of a manager, director, officer, trustee, agent or fiduciary of any Contributed Company or any of its Subsidiaries and acting in its capacity as such officers (collectively, the “D&O Indemnified Parties“) as provided in under any charter, bylaws, limited liability company agreement, partnership agreement or other similar organizational documents or agreements of the Contributed Companies and their Subsidiaries (collectively, the “Contributed Company Organizational Documents”) in a form reasonably acceptable to Buyer, which shall provide such directors and indemnification agreements of the Contributed Companies and/or their Subsidiaries shall survive officers with coverage for six (6) years following the Closing and shall continue have a scope substantially similar to the existing coverage under, and have other terms not materially less favorable to the insured persons than the terms of, directors’ and officers’ liability insurance coverage currently maintained by the Company. The D&O Tail shall be accompanied by an endorsement that names Buyer as a successor-in-interest thereto. Buyer will not, nor will it cause the Company to, cancel or change the D&O Tail in full force and effect in accordance with their terms. For any respect. (b) In addition, for a period of six (6) years from following the Closing, PEGC I Buyer and PEGC I OP the Company agree that the Contributed Company Organizational Documents shall not be amendedto indemnify and hold harmless, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of reimburse, exculpate from liability, and advance expenses to all D&O Indemnified PartyParties to the same extent and on the same terms as such persons are entitled to indemnification, unless such modification shall be required reimbursement, exculpation or expense advancement by the Company as of the date hereof, whether pursuant to applicable documents (including the certificate of incorporation or bylaws), individual indemnification agreements set forth on the Disclosure Schedule, by applicable Law and then only to the minimum extent required by applicable Law. (b) PEGC I OP has obtained law 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 conditionsotherwise, for acts or omissions or matters occurring which occurred or arose at or prior to the Closing (regardless of whether any proceeding relating to any D&O Indemnified Party’s rights to indemnification, exculpation, or expense advancement with respect to any such matters, acts, or omissions is commenced before or after the “Closing); provided that no D&O Tail Policy“) that is no less favorable than Indemnified Party may seek indemnification, reimbursement, exculpation, or advancement of expenses from Buyer or the Contributed Company’s or such Subsidiary’s existing policy (true and complete copies which have been previously provided to PEGC I OP) or, if substantially equivalent insurance coverage is unavailable, the best available coverage; provided, that (i) the premium Company for amounts such D&O Tail Policy shall not exceed 300% of Indemnified Party owes or may owe to Buyer or the last annual premium paid Company in such D&O Indemnified Party’s capacity as a Seller Indemnifying Party under the provisions set forth in ARTICLE VIII. Any claims for indemnification made under this Section 4.13 on or prior to the date of this Agreement unless the Contributors agree to bear the incremental cost in excess thereof, and (ii) PEGC I OP and the Contributors (through an increase to Contribution Transaction Expenses) shall each bear 50% sixth anniversary of the cost of Closing shall survive until the D&O Tail Policyfinal resolution thereof. (c) If any of PEGC I or the PEGC I 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, thenThe Company shall, and in each such caseBuyer shall cause the Company or its successors to, proper provision shall be made so that the successors pay all costs and assigns of PEGC I or the PEGC I OP, as applicable, assume the obligations set forth in this Section 6.20. expenses (dincluding reasonable attorneys’ fees) The provisions of this Section 6.20 are intended to be for the express benefit of, and shall be enforceable by, each incurred by any D&O Indemnified Party (who are intended to be third party beneficiaries of this Section 6.20), or his or her heirs heirs, personal representatives, successors, or assigns) in any legal action brought by such person that is successful to enforce the obligations of Buyer, the Company, or its successors under this Section 4.13. The obligations of Buyer, the Company, and its successors under this Section 4.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any D&O Indemnified Party (or his or her heirs, personal representatives, shall be binding on all successors and assigns of PEGC I, PEGC I OP and the Contributed Companies and their Subsidiaries and shall not be amended in a manner that is adverse to the D&O Indemnified Parties (including their successors, assigns and heirsor assigns) without the prior written consent of the such D&O Indemnified Party (including the or his or her heirs, personal representatives, successors, assigns and heirs) affected thereby. The exculpation and indemnification provided for by this Section 6.20 shall not be deemed to be exclusive of any other rights to which a D&O Indemnified Party is entitledor assigns, whether pursuant to applicable Law, contract or otherwiseas applicable). (e) Notwithstanding anything to the contrary in this Section 6.20, PEGC I and PEGC I OP shall have no obligation under this Agreement to indemnify or hold harmless any D&O Indemnified Party (i) in respect of any claim made by any Contributor Indemnitee against PEGC I OP under Article X hereof, or (ii) against obligations of such D&O Indemnifying Party to bear its portion of any indemnification obligations to the PEGC I Indemnitees under Article X hereof.