Common use of Indemnification; Advancement Clause in Contracts

Indemnification; Advancement. The Company and the Subsidiaries shall jointly and severally reimburse, defend, indemnify and hold the Consultant Indemnitees, and each of them, harmless from and against any Liabilities arising out of, related to, caused by, based upon or in connection with (a) any act or omission of, or on behalf of, the Company, any of the Subsidiaries, the Consultant or any of the Consultant Indemnitees, except to the extent proven to result directly and primarily from the willful misconduct or gross negligence of the person seeking indemnification, or (b) any act or omission made at the direction of the Company or any of the Subsidiaries (collectively, the items in (a) and (b) above, “Claims”). The Company, the Subsidiaries and any of their affiliates (other than the Consultant Indemnitees) shall jointly and severally defend at their own cost and expense any and all suits or actions (just or unjust) which may be brought against the Company, any of the Subsidiaries or any of their affiliates, or any Consultant Indemnitee or in which any Consultant Indemnitee may be impleaded with others upon any Claims, or upon any matter, directly or indirectly arising out of, related to, caused by, based upon or in connection with this Agreement or the performance (or failure of performance) hereof by any Consultant Indemnitee. Reasonable expenses incurred by a Consultant Indemnitee entitled to be indemnified under this Section 6 who was, is or is threatened to be made subject to a Claim shall be paid by the Company in advance of the final disposition of the Claim upon receipt of an undertaking by or on behalf of such Consultant Indemnitee to repay such amount if it shall ultimately be determined that he, she or it is not entitled to be indemnified by the Company and the Subsidiaries. If the Company has acknowledged in writing its indemnification obligations hereunder with respect to a Claim and is actively defending a Claim, a Consultant Indemnitee shall not be entitled to reimbursement of expenses related to the engagement of separate legal counsel with respect to such Claim unless Consultant Indemnitee, in good faith upon the advice of counsel, believes a conflict of interest necessitates the engagement of such legal counsel. Neither Party may settle any Claim without the consent of the other Party, such consent not to be unreasonably withheld or delayed. The Company hereby acknowledges that the Consultant Indemnities have certain rights to advancement and/or indemnification by certain affiliates of Sun Capital Partners, Inc. (collectively, the “Fund Indemnitors”). The Company hereby agrees that the Company is the indemnitor of first resort (i.e., its obligations to the Consultant Indemnitees are primary and those of the Fund Indemnitors are secondary), that the Company shall be liable for the full amount of payments of indemnification required by any organizational document of such entity or any agreement to which such entity is a party, and that the Company irrevocably and unconditionally waives any claims against the Fund Indemnitors for contribution, subrogation, exoneration, reimbursement or any other recovery of any kind for which it is liable pursuant to any organizational document or agreement including this Agreement. The Company further agrees that no payment for indemnification by the Fund Indemnitors on behalf of any Indemnified Party with respect to any claim for which an Indemnified Party has sought payment from it shall affect the foregoing, and the Fund Indemnitors, to the extent of such payment, shall be subrogated to all of the rights of recovery of such Indemnified Party against it.

Indemnification; Advancement. The Company and the Subsidiaries shall jointly and severally reimburse, defend, indemnify and hold the Consultant Indemnitees, and each of them, harmless from and against any Liabilities arising out of, related to, caused by, based upon or in connection with (a) any act Each person who was or omission of, or on behalf of, the Company, any of the Subsidiaries, the Consultant or any of the Consultant Indemnitees, except to the extent proven to result directly and primarily from the willful misconduct or gross negligence of the person seeking indemnification, or (b) any act or omission is made at the direction of the Company or any of the Subsidiaries (collectively, the items in (a) and (b) above, “Claims”). The Company, the Subsidiaries and any of their affiliates (other than the Consultant Indemnitees) shall jointly and severally defend at their own cost and expense any and all suits or actions (just or unjust) which may be brought against the Company, any of the Subsidiaries or any of their affiliates, or any Consultant Indemnitee or in which any Consultant Indemnitee may be impleaded with others upon any Claims, or upon any matter, directly or indirectly arising out of, related to, caused by, based upon or in connection with this Agreement or the performance (or failure of performance) hereof by any Consultant Indemnitee. Reasonable expenses incurred by a Consultant Indemnitee entitled to be indemnified under this Section 6 who was, is party or is threatened to be made subject a party to or is otherwise involved in any action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she or a person of whom he or she is the legal representative is or was, at any time during which this Certificate of Incorporation is in effect (whether or not such person continues to serve in such capacity at the time any indemnification or payment of expenses pursuant hereto is sought or at the time any proceeding relating thereto exists or is brought), a director or officer of the Corporation or is or was at any such time serving at the request of the Corporation as a director, officer, trustee, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to employee benefit plans maintained or sponsored by the Corporation (hereinafter, an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, trustee, employee or agent or in any other capacity while serving as a director, officer, trustee, employee or agent, shall be (and shall be deemed to have a contractual right to be) indemnified and held harmless by the Corporation (and any successor of the Corporation by merger or otherwise) to the fullest extent authorized by the DGCL as the same exists or may hereafter be amended or modified from time to time against all expense, liability and loss (including attorneys’ fees, judgments, fines, ERISA excise taxes or penalties and amounts paid or to be paid in settlement) incurred or suffered by such person in connection therewith and such indemnification shall continue as to a Claim person who has ceased to be a director, officer, trustee, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators; provided, however, that except as provided in paragraph (c) of this Article X, the Corporation shall indemnify any such person seeking indemnification in connection with a proceeding (or part thereof) initiated by such person only if such proceeding (or part thereof) was authorized by the Board. The right to indemnification conferred in this Article X shall include the right, without the need for any action by the Board, to be paid by the Company Corporation (and any successor of the Corporation by merger or otherwise) the expenses incurred in defending any such proceeding in advance of its final disposition, such advances to be paid by the final disposition Corporation within twenty (20) days after the receipt by the Corporation of a statement or statements from the Claim claimant requesting such advance or advances from time to time; provided, however, that if the DGCL requires, the payment of such expenses incurred by a director or officer in his or her capacity as a director or officer (and not in any other capacity in which service was or is rendered by such person while a director or officer, including, without limitation, service to an employee benefit plan) shall be made only upon receipt delivery to the Corporation of an undertaking (hereinafter, the “undertaking”) by or on behalf of such Consultant Indemnitee director or officer, to repay such amount all amounts so advanced if it shall ultimately be determined by final judicial decision from which there is no further right of appeal (a “final disposition”) that he, she such director or it officer is not entitled to be indemnified by for such expenses under this Article X or otherwise. The rights conferred upon indemnitees in this Article X shall be contract rights between the Company Corporation and each indemnitee to whom such rights are extended that vest at the Subsidiaries. If commencement of such person’s service to or at the Company request of the Corporation and all such rights shall continue as to an indemnitee who has acknowledged in writing its indemnification obligations hereunder with respect ceased to be a Claim director or officer of the Corporation or ceased to serve at the Corporation’s request as a director, officer, trustee, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, as described herein, and is actively defending a Claim, a Consultant Indemnitee shall not be entitled to reimbursement of expenses related inure to the engagement of separate legal counsel with respect to such Claim unless Consultant Indemnitee, in good faith upon the advice of counsel, believes a conflict of interest necessitates the engagement of such legal counsel. Neither Party may settle any Claim without the consent benefit of the other Partyindemnitee’s heirs, such consent not to be unreasonably withheld or delayed. The Company hereby acknowledges that the Consultant Indemnities have certain rights to advancement and/or indemnification by certain affiliates of Sun Capital Partners, Inc. (collectively, the “Fund Indemnitors”). The Company hereby agrees that the Company is the indemnitor of first resort (i.e., its obligations to the Consultant Indemnitees are primary executors and those of the Fund Indemnitors are secondary), that the Company shall be liable for the full amount of payments of indemnification required by any organizational document of such entity or any agreement to which such entity is a party, and that the Company irrevocably and unconditionally waives any claims against the Fund Indemnitors for contribution, subrogation, exoneration, reimbursement or any other recovery of any kind for which it is liable pursuant to any organizational document or agreement including this Agreement. The Company further agrees that no payment for indemnification by the Fund Indemnitors on behalf of any Indemnified Party with respect to any claim for which an Indemnified Party has sought payment from it shall affect the foregoing, and the Fund Indemnitors, to the extent of such payment, shall be subrogated to all of the rights of recovery of such Indemnified Party against itadministrators.

Indemnification; Advancement. (a) The Company and the Subsidiaries shall jointly and severally reimburse, defend, indemnify and hold the Consultant Indemnitees, and each of them, harmless from and against any Liabilities arising out of, related to, caused by, based upon or in connection with (a) any act or omission of, or on behalf of, the Company, any of the Subsidiaries, the Consultant or any of the Consultant Indemnitees, except to the extent proven such Liability shall have been finally determined by a court of competent jurisdiction to result have resulted directly and primarily from the fraud, bad faith, gross negligence or willful misconduct or gross negligence of the person seeking indemnification, or (b) any act or omission made at the direction of the Company or any of the Subsidiaries (collectively, the items in (a) and (b) above, “Claims”). The Company, Company and the Subsidiaries and any of their affiliates (other than the Consultant Indemnitees) shall jointly and severally defend at their own cost and expense any and all suits or actions (just or unjust) which may be brought against the Company, any of the Subsidiaries or any of their affiliates, or any Consultant Indemnitee or in which any Consultant Indemnitee may be impleaded with others upon any Claims, or upon any matter, directly or indirectly arising out of, related to, caused by, based upon or in connection with this Agreement Agreement, the Services or the performance (or failure of performance) hereof by any Consultant Indemnitee. Reasonable expenses incurred by a Consultant Indemnitee entitled to be indemnified under this Section 6 who was, is or is threatened to be made subject to a Claim shall be paid by the Company in advance of the final disposition of the Claim upon receipt of an undertaking by or on behalf of such Consultant Indemnitee to repay such amount if it shall ultimately be determined that he, she or it is not entitled to be indemnified by the Company and the Subsidiaries. If the Company has acknowledged in writing its indemnification obligations hereunder with respect to a Claim and is actively defending a Claim, a Consultant Indemnitee shall not be entitled to reimbursement of expenses related to the engagement of separate legal counsel with respect to such Claim unless Consultant Indemnitee, in good faith upon the advice of counsel, believes a conflict of interest necessitates the engagement of such legal counsel. Neither Party may settle any Claim without the consent of the other Party, such consent not to be unreasonably withheld or delayedSubsidiaries as set forth herein. The Company hereby acknowledges that the Consultant Indemnities Indemnitees have certain rights to advancement and/or indemnification by certain affiliates of Sun Capital Partners, Inc. Consultant (collectively, the “Fund Indemnitors”). The Company hereby agrees (for itself and the Subsidiaries) that the Company is and the Subsidiaries are the indemnitor of first resort (i.e., its each such person’s respective obligations to the Consultant Indemnitees are primary and those of the Fund Indemnitors are secondary), that the Company shall be and the Subsidiaries are liable for the full amount of payments of indemnification required by any organizational document of such entity or any agreement to which such entity is a party, and that the Company (for itself and the Subsidiaries) irrevocably and unconditionally waives any claims against the Fund Indemnitors for contribution, subrogation, exoneration, reimbursement or any other recovery of any kind for which it is liable pursuant to any organizational document or agreement including this Agreement. The Company (for itself and the Subsidiaries) further agrees that no payment for indemnification by the Fund Indemnitors on behalf of any Indemnified Party Consultant Indemnitee with respect to any claim for which an Indemnified Party a Consultant Indemnitee has sought payment from it shall affect the foregoing, and the Fund Indemnitors, to the extent of such payment, shall be subrogated to all of the rights of recovery of such Indemnified Party Consultant Indemnitee against it.

Indemnification; Advancement. The Company and the Subsidiaries shall jointly and severally reimburse, defend, indemnify and hold the Consultant Indemnitees, and each of them, harmless from and against any Liabilities arising out of, related to, caused by, based upon or in connection with (a) any act or omission of, or on behalf of, the Company, any of the Subsidiaries, the Consultant or any of the Consultant Indemnitees, except to the extent proven to result directly and primarily from the willful misconduct or gross negligence of the person seeking indemnification, or (b) any act or omission made at the direction of the Company or any of the Subsidiaries (collectively, the items in (a) and (b) above, “Claims”). The Company, the Subsidiaries and any of their affiliates (other than the Consultant Indemnitees) shall jointly and severally defend at their own cost and expense any and all suits or actions (just or unjust) which may be brought against the Company, any of the Subsidiaries or any of their affiliates, or any Consultant Indemnitee or in which any Consultant Indemnitee may be impleaded with others upon any Claims, or upon any matter, directly or indirectly arising out of, related to, caused by, based upon or in connection with this Agreement or the performance (or failure of performance) hereof by any Consultant Indemnitee. Reasonable expenses incurred by a Consultant Indemnitee entitled to be indemnified under this Section 6 7 who was, is or is threatened to be made subject to a Claim shall be paid by the Company in advance of the final disposition of the Claim upon receipt of an undertaking by or on behalf of such Consultant Indemnitee to repay such amount if it shall ultimately be determined that he, she or it is not entitled to be indemnified by the Company and the Subsidiaries. If the Company has acknowledged in writing its indemnification obligations hereunder with respect to a Claim and is actively defending a Claim, a Consultant Indemnitee shall not be entitled to reimbursement of expenses related to the engagement of separate legal counsel with respect to such Claim unless Consultant Indemnitee, in good faith upon the advice of counsel, believes a conflict of interest necessitates the engagement of such legal counsel. Neither Party may settle any Claim without the consent of the other Party, such consent not to be unreasonably withheld or delayed. The Company and each Subsidiary who is a guarantor hereto (a “Subsidiary Guarantor”) hereby acknowledges that the Consultant Indemnities have certain rights to advancement and/or indemnification by certain affiliates of Sun Capital Partners, Inc. (collectively, the “Fund Indemnitors”). The Company and each Subsidiary Guarantor hereby agrees that the Company and each Subsidiary Guarantor is the indemnitor of first resort (i.e., its obligations to the Consultant Indemnitees are primary and those of the Fund Indemnitors are secondary), that the Company and each Subsidiary Guarantor shall be liable for the full amount of payments of indemnification required by any organizational document of such entity or any agreement to which such entity is a party, and that the Company and each Subsidiary Guarantor irrevocably and unconditionally waives any claims against the Fund Indemnitors for contribution, subrogation, exoneration, reimbursement or any other recovery of any kind for which it is liable pursuant to any organizational document or agreement including this Agreement. The Company and each Subsidiary Guarantor further agrees that no payment for indemnification by the Fund Indemnitors on behalf of any Indemnified Party with respect to any claim for which an Indemnified Party has sought payment from it shall affect the foregoing, and the Fund Indemnitors, to the extent of such payment, shall be subrogated to all of the rights of recovery of such Indemnified Party against it.