Common use of D&O Indemnification and Insurance Clause in Contracts

D&O Indemnification and Insurance. (a) From the Effective Time through the later of (i) the sixth anniversary of the date on which the Effective Time occurs and (ii) the expiration of any statute of limitations applicable to any Covered Claim (defined below), Parent shall, or shall cause the Surviving Corporation to, indemnify and hold harmless each present and former officer, director, employee or agent of the Company, including, without limitation, each person controlling any of the foregoing persons (the "Indemnified Parties"), against all claims, losses, liabilities, damages, judgments, fines, fees, costs or expenses, including, without limitation, attorneys' fees and disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation ("Claim"), whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that such person is or was a director, officer, employee or agent of the Company or any subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) this Agreement, or any of the transactions contemplated hereby, in each case to the extent that any such Claim pertains to matters existing or occurring at or prior to the Effective Time (including, without limitation, this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time ("Covered Claims"), to the fullest extent permitted under applicable law and the Certificate of Incorporation or By-Laws of the Company or under indemnification agreements in effect on the date hereof, including without limitation provisions relating to advancement of expenses incurred in the defense of any Claim, subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. Without limiting the foregoing, in the event that any Covered Claim is brought against any Indemnified Party (whether arising before or after the Effective Time), the Indemnified Party may retain counsel satisfactory to such Indemnified Party, and Parent shall, or shall cause the Surviving Corporation to, advance the fees and expenses of such counsel for the Indemnified Party in accordance with the Certificate of Incorporation or By-Laws of the Company in effect on the date of this Agreement. (b) Parent shall keep in effect, or shall cause the Surviving Corporation to keep in effect, provisions in its Limited Liability Company Agreement (in the case of Parent) or Certificate of Incorporation and By-Laws (in the case of the Surviving Corporation) providing for exculpation of director and officer liability and its indemnification of the Indemnified Parties to the fullest extent permitted by law, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enlarge the Indemnified Parties' right to indemnification. (c) Parent shall maintain, or shall cause the Surviving Corporation to maintain, in effect for six years after the Effective Time at no expense to the beneficiaries, policies of directors' and officers' liability insurance and fiduciary liability insurance comparable to the policies maintained by the Company in effect on the date of this Agreement ("D&O Insurance"), the terms of which the Company has disclosed to Parent, for the Indemnified Parties with respect to Covered Claims, by purchasing at or before the Effective Time a six year extended reporting endorsement to such D&O Insurance (with a one-time premium cost not to exceed $100,000), effective as of the Effective Time. If such an endorsement for D&O Insurance is not available, the Parent shall maintain, or cause the Surviving Corporation to maintain, the Company's D&O Insurance in effect on the date of this Agreement or policies providing not less than equivalent coverage (in each case with respect to Covered Claims) for at least six years from the Effective Time, at no expense to the beneficiaries, provided that in no event shall Parent be required to expend in excess of 200% of the per annum premiums paid by the Company for such insurance for its last full fiscal year, which amount has been disclosed to Parent, and provided further that if the annual premiums of such insurance coverage exceeds such 200% amount, Parent shall use its best efforts to obtain a policy with the greatest coverage available for a cost not exceeding such 200% amount. In the event any claim is made against present or former directors, officers or employees of the Company that is covered or potentially covered by insurance, neither the Surviving Corporation nor Parent shall do anything that would forfeit, jeopardize, restrict, or limit the insurance coverage available for that claim until the final disposition thereof. (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.8 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise. Parent shall pay all expenses, including attorney's fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Section 5.8. (f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 5.8, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent shall succeed to the obligations set forth in this Section 5.8 and none of the actions described in clauses (i) or (ii) shall be taken until such provision is made.

D&O Indemnification and Insurance. (a) From and after the Effective Time through the later of (i) the sixth anniversary of the date on which the Effective Time occurs and (ii) the expiration of any statute of limitations applicable to any Covered Claim (defined below)Purchase Date, Parent shall, or and shall cause the Company and the Surviving Corporation to, (i) indemnify and hold harmless each present and former officerindividual who at the Effective Time is, directoror at any time prior to the Effective Time was, employee a director or agent officer of the Company, including, without limitation, each person controlling any Company or of a Subsidiary of the foregoing persons Company or provided executive services to the Company or any Subsidiary of the Company (each, an “Indemnitee” and, collectively, the "Indemnified Parties"), against “Indemnitees”) with respect to all claims, liabilities, losses, liabilities, damages, judgments, fines, feespenalties, costs (including amounts paid in settlement or expenses, including, without limitation, attorneys' compromise) and expenses (including fees and disbursements (collectively, "Costs"), incurred expenses of legal counsel) in connection with any claim, suit, action, suit, proceeding or investigation ("Claim"), whether civil, criminal, administrative or investigative), whenever asserted, based on or arising out of of, in whole or pertaining to in part, (iA) the fact that an Indemnitee was a director or officer of, or provided executive services to, the Company or such person is Subsidiary or was (B) acts or omissions by an Indemnitee in the Indemnitee’s capacity as a director, officer, employee or agent of the Company or any subsidiaries such Subsidiary or is taken at the request of the Company or was such Subsidiary (including in connection with serving at the request of the Company or any of its subsidiaries such Subsidiary as a director, officer, employee employee, agent, trustee or agent fiduciary of another corporationPerson (including any employee benefit plan)), partnershipin each case under (A) or (B), joint venture, trust or other enterpriseat, or at any time prior to, the Effective Time (ii) this Agreementincluding any claim, suit, action, proceeding or any of investigation relating in whole or in part to the transactions contemplated hereby, in each case to the extent that any such Claim pertains to matters existing or occurring at or prior to the Effective Time (including, without limitation, this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Effective Time ("Covered Claims"), to the fullest extent permitted under applicable law Law, and (ii) assume all obligations of the Certificate Company and such Subsidiaries to the Indemnitees in respect of Incorporation indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time as provided in (A) the Company’s Charter and By-Laws and the organizational documents of such Subsidiaries as currently in effect and (B) the Company or under indemnification agreements in effect on the date hereof, including without limitation provisions relating previously made available to advancement of expenses incurred Parent and Purchaser by posting in the defense of any ClaimData Room, subject to which shall survive the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced transactions contemplated hereby and continue in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled theretofull force and effect in accordance with their respective terms. Without limiting the foregoing, in the event that any Covered Claim is brought against any Indemnified Party (whether arising before or Parent, from and after the Effective Time), the Indemnified Party may retain counsel satisfactory to such Indemnified Party, and Parent shall, or shall cause the charter and by-laws of the Surviving Corporation to, advance to contain provisions no less favorable to the fees Indemnitees with respect to limitation of liabilities of directors and expenses officers and indemnification than are set forth as of such counsel for the Indemnified Party in accordance with the Certificate of Incorporation or By-Laws of the Company in effect on the date of this Agreement. (b) Parent shall keep in effect, or shall cause the Surviving Corporation to keep in effect, provisions in its Limited Liability Company Agreement (in the case of Parent) or Certificate of Incorporation Company’s Charter and By-Laws (in the case of the Surviving Corporation) providing for exculpation of director and officer liability and its indemnification of the Indemnified Parties to the fullest extent permitted by lawlaws, which provisions shall not be amended except amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, from and after the Purchase Date, Parent shall, and shall cause the Company and the Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 6.10 (including in connection with enforcing the indemnity and other obligations referred to in this Section 6.10) as incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable law Law. Notwithstanding the foregoing, nothing contained in this Section 6.10(a) shall provide any Indemnitee with any greater rights to indemnification for any matter for which the Company is providing indemnification as of the date of the consummation of the Offer. (b) An Indemnitee shall have the right, but not the obligation, to assume and control the defense of any litigation, claim or except proceeding relating to make changes any acts or omissions covered under this Section 6.10 (each, a “Claim”) with counsel selected by the Indemnitee, which counsel shall be reasonably acceptable to Parent; provided, however, that Parent (i) shall be permitted to participate in the defense of such Claim at its own expense and (ii) shall not be liable for any settlement effected without Parent’s written consent, which consent shall not be unreasonably withheld, conditioned or delayed. Absent any conflicts of interest identified by law that would enlarge counsel, each of Parent, the Indemnified Parties' right Company, the Surviving Corporation and the Indemnitees shall cooperate in the defense of any Claim and shall provide access to indemnificationproperties and individuals as reasonably requested and furnish or cause to be furnished records, information and testimony, and attend such conferences, discovery proceedings, hearings, trials or appeals, as may be reasonably requested in connection therewith. (c) Parent Prior to the Effective Time, the Company shall maintainpurchase a “tail” insurance policy (which policy by its express terms shall survive the Merger), of at least the same coverage and amounts and containing terms and conditions that are no less favorable to the directors and officers of the Company as the Company’s and its Subsidiaries’ existing policy or shall cause policies, for the Surviving Corporation to maintain, in effect for benefit of the current and former officers and directors of the Company and each of its Subsidiaries with a claims period of six (6) years after from the Effective Time at no expense with respect to directors’ and officers’ liability for claims arising from facts or events that occurred on or prior to the beneficiariesEffective Time; provided, however, that in no event shall the aggregate annual premium payable for such “tail” insurance policies exceed 200% of directors' and officers' liability insurance and fiduciary liability insurance comparable to the policies maintained aggregate annual premium paid by the Company for directors’ and officers’ insurance under the policies in effect on as of the date of this Agreement ("D&O Insurance"such amount being the “Maximum Premium”). If the Company is unable to obtain the “tail” insurance described in the first sentence of this Section 6.10(c) for an amount equal to or less than the Maximum Premium, the terms of which the Company has disclosed shall be entitled to Parent, obtain as much comparable “tail” insurance as possible for the Indemnified Parties with respect to Covered Claims, by purchasing at or before the Effective Time a six year extended reporting endorsement to such D&O Insurance (with a one-time premium cost not to exceed $100,000), effective as of the Effective Time. If such an endorsement for D&O Insurance is not available, the Parent shall maintain, or cause the Surviving Corporation to maintain, the Company's D&O Insurance in effect on the date of this Agreement or policies providing not less than equivalent coverage (in each case with respect to Covered Claims) for at least six years from the Effective Time, at no expense amount equal to the beneficiaries, provided that in no event shall Parent be required to expend in excess of 200% of the per annum premiums paid by the Company for such insurance for its last full fiscal year, which amount has been disclosed to Parent, and provided further that if the annual premiums of such insurance coverage exceeds such 200% amount, Parent shall use its best efforts to obtain a policy with the greatest coverage available for a cost not exceeding such 200% amount. In the event any claim is made against present or former directors, officers or employees of the Company that is covered or potentially covered by insurance, neither the Surviving Corporation nor Parent shall do anything that would forfeit, jeopardize, restrict, or limit the insurance coverage available for that claim until the final disposition thereofMaximum Premium. (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party, on or prior to the sixth anniversary of the Effective Time, the The provisions of this Section 5.8 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. 6.10 are (ei) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective Indemnitee, his or her heirs and legal representatives. The indemnification provided for herein shall his or her representatives and (ii) in addition to, and not be deemed exclusive of in substitution for, any other rights to which an Indemnified Party is entitled, whether pursuant to law, indemnification or contribution that any such Person may have by contract or otherwise. The obligations of Parent shall pay all expenses, including attorney's fees, that may be incurred by any Indemnified Party in enforcing and the indemnity and other obligations provided for in Surviving Corporation under this Section 5.86.10 shall not be terminated or modified in such a manner as to adversely affect the rights of any Indemnitee to whom this Section 6.10 applies unless (x) such termination or modification is required by applicable Law or (y) the affected Indemnitee shall have consented in writing to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.10 applies shall be third party beneficiaries of this Section 6.10). (fe) In the event that the Surviving Corporation or Parent or any of their its respective successors or assigns (i) consolidates with or merges into any other person Person and shall is 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 to any personPerson, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 5.8, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent shall succeed to assume all of the obligations thereof set forth in this Section 5.8 and none of the actions described in clauses (i) or (ii) shall be taken until such provision is made6.10.

D&O Indemnification and Insurance. (a) From the Effective Time through the later of (i) the sixth anniversary of the date on which the Effective Time occurs and (ii) the expiration of any statute of limitations applicable to any Covered Claim (defined below)occurs, Parent shall, or Purchasers shall cause the Surviving Corporation to, to indemnify and hold harmless each present and former officer, director, employee or agent of the Company, including, without limitation, each person Person controlling any of the foregoing persons Persons (the "Indemnified Parties"), against all claims, losses, liabilities, damages, judgments, fines, fees, costs or expenses, including, without limitation, attorneys' fees and disbursements (collectively, "Costs"), incurred in connection with any claim, action, suit, proceeding or investigation ("Claim")investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (i) the fact that such person is or was a director, officer, employee or agent of the Company or any subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) this Agreement, or any of the transactions contemplated hereby, in each case to the extent that any such Claim pertains to matters existing or occurring at or prior to the Effective Time (including, without limitation, this Agreement and the transactions and actions contemplated herebyhereby and giving effect to the consummation of such transactions and actions), whether asserted or claimed prior to, at or after the Effective Time ("Covered Claims")Time, to the fullest extent permitted under applicable law and the Certificate Articles of Incorporation or By-Laws of the Company or under indemnification agreements in effect on the date hereof, including without limitation provisions relating to advancement of expenses incurred in the defense of any Claimclaim, subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled theretoaction, suit, proceeding or investigation. Without limiting the foregoing, in the event that any Covered Claim claim, action, suit, proceeding or investigation is brought against any an Indemnified Party (whether arising before or after the Effective Time), the Indemnified Party may retain counsel satisfactory to such Indemnified Party, Party and Parent Purchasers shall, or shall cause the Surviving Corporation to, advance the fees and expenses of such counsel for the Indemnified Party in accordance with the Certificate Articles of Incorporation or By-Laws of the Company in effect on the date of this Agreement. (b) Parent shall keep in effect, or shall cause the Surviving Corporation to keep in effect, provisions in its Limited Liability Company Agreement (in the case of Parent) or Certificate of Incorporation and By-Laws (in the case of the Surviving Corporation) providing for exculpation of director and officer liability and its indemnification of the Indemnified Parties to the fullest extent permitted by law, which provisions shall not be amended except as required by applicable law or except to make changes permitted by law that would enlarge the Indemnified Parties' right to indemnification. (c) Parent shall maintain, or shall cause the Surviving Corporation to maintain, in effect for six years after the Effective Time at no expense to the beneficiaries, policies of directors' and officers' liability insurance and fiduciary liability insurance comparable to the policies maintained by the Company in effect on the date of this Agreement ("D&O Insurance"), the terms of which the Company has disclosed to Parent, for the Indemnified Parties with respect to Covered Claims, by purchasing at or before the Effective Time a six year extended reporting endorsement to such D&O Insurance (with a one-time premium cost not to exceed $100,000), effective as of the Effective Time. If such an endorsement for D&O Insurance is not available, the Parent shall maintain, or cause the Surviving Corporation to maintain, the Company's D&O Insurance in effect on the date of this Agreement or policies providing not less than equivalent coverage (in each case with respect to Covered Claims) for at least six years from the Effective Time, at no expense to the beneficiaries, provided that in no event shall Parent be required to expend in excess of 200% of the per annum premiums paid by the Company for such insurance for its last full fiscal year, which amount has been disclosed to Parent, and provided further that if the annual premiums of such insurance coverage exceeds such 200% amount, Parent shall use its best efforts to obtain a policy with the greatest coverage available for a cost not exceeding such 200% amount. In the event any claim is made against present or former directors, officers or employees of the Company that is covered or potentially covered by insurance, neither the Surviving Corporation nor Parent shall do anything that would forfeit, jeopardize, restrict, or limit the insurance coverage available for that claim until the final disposition thereof. (d) Notwithstanding anything herein to the contrary, if any claim, action, suit, proceeding or investigation (whether arising before, at or after the Effective Time) is made against any Indemnified Party, on or prior to the sixth anniversary of the Effective Time, the provisions of this Section 5.8 shall continue in effect until the final disposition of such claim, action, suit, proceeding or investigation. (e) This covenant is intended to be for the benefit of, and shall be enforceable by, each of the Indemnified Parties and their respective heirs and legal representatives. The indemnification provided for herein shall not be deemed exclusive of any other rights to which an Indemnified Party is entitled, whether pursuant to law, contract or otherwise. Parent shall pay all expenses, including attorney's fees, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Section 5.8. (f) In the event that the Surviving Corporation or Parent or any of their respective successors or assigns (i) consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 5.8, proper provision shall be made so that the successors and assigns of the Surviving Corporation or Parent shall succeed to the obligations set forth in this Section 5.8 and none of the actions described in clauses (i) or (ii) shall be taken until such provision is made.