Common use of Indemnification and Other Matters Clause in Contracts

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners and its affiliates and its and their partners, directors, officers, employees and agents (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with the engagement of AlixPartners that is the subject of the Agreement. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay the costs of AlixPartners’ professional time (AlixPartners’ professional time will be reimbursed at AlixPartners’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a party. The indemnitees may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If AlixPartners is unable to purchase such D&O insurance, then AlixPartners reserves the right to terminate the Agreement. AlixPartners is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartners, whether or not AlixPartners is instrumental in procuring the third-party product or service. AlixPartners shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing or intentional misconduct.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners APS and its affiliates and its and their partners, directors, officers, employees and agents (collectively, the “indemniteesAPS Parties”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with the engagement of AlixPartners APS that is the subject of the Agreement. The Company shall pay damages and expenses as incurredexpenses, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay the costs of AlixPartners’ professional time (AlixPartners’ professional time will be reimbursed at AlixPartners’ rates counsel as incurred in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a partyadvance. The indemnitees APS Parties may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which these indemnification and advancement obligations relate. If an APS Party is required by applicable law, legal process or government action to produce information or testimony as a witness with respect to this indemnification agreement relatesAgreement, the Company shall reimburse APS for any professional time and expenses (including reasonable external and internal legal costs) incurred to respond to the request, except in cases where an APS Party is a party to the proceeding or the subject of the investigation. In addition to the above indemnificationindemnification and advancement, AlixPartners APS employees serving as directors or officers of the Company or affiliates will be entitled to receive the benefit of the most favorable indemnities indemnification and advancement of expenses provisions provided by the Company to its directors directors, officers and officersany equivalently placed employees, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners cover employees and agents serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for liability insurance covering its directors’ , officers and officers’ any equivalently placed employees (“D&OD&O insurance”). Prior to APS accepting any officer position, the Company shall, at the request of APS, provide APS a copy of its current D&O policy, a certificate(s) insuranceof insurance evidencing the policy is in full force and effect, and a copy of the signed board resolutions and any other documents as APS may reasonably request evidencing the appointment and coverage of the indemnitees. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners APS employees and agents under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners APS in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been there are outstanding or are expected to be filed threatened claims against officers and directors alleging prior acts that may give rise to a claim), AlixPartners APS may, at its option, attempt to purchase a separate D&O insurance policy that will cover AlixPartners APS employees and agents only. The cost of same the policy shall be invoiced to the Company as an out -of -pocket cash out-of-pocket expense. If AlixPartners APS is unable or unwilling to purchase such D&O insurance, then AlixPartners APS reserves the right to terminate the Agreement. AlixPartners Notwithstanding anything to the contrary, the Company’s indemnification and advancement obligations in this Section 7 shall be primary to (and without allocation against) any similar indemnification and advancement obligations of APS, its affiliates and insurers to the indemnitees (which shall be secondary), and the Company’s D&O insurance coverage for the indemnitees shall be specifically primary to (and without allocation against) any other valid and collectible insurance coverage that may apply to the indemnitees (whether provided by APS or otherwise). APS is not responsible for any third-party products or servicesservices separately procured by the Company. The Company’s sole and exclusive rights and remedies with respect to any such third party products or services are against the third-party vendor and not against AlixPartnersAPS, whether or not AlixPartners APS is instrumental in procuring the such third-party product or service. AlixPartners shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing or intentional misconduct.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners APS and its affiliates and its and their partners, APS’ directors, officers, employees employees, Temporary Staff and agents (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with to the engagement of AlixPartners that is the subject extent of the Agreementmost favorable indemnities provided by the Company to any of its directors or officers, provided, however, that to the extent any matter for which indemnification is called for hereunder arises while the Company is under the protection of the Bankruptcy Code, indemnification of APS personnel who are not directors or officers of the Company shall be subject to the approval of the Board of Directors of the Company. The Company shall pay damages and expenses costs as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay counsel and the costs of AlixPartnersAPS’ professional time (AlixPartnersAPS’ professional time will be reimbursed at AlixPartnersAPS’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee APS or other indemnitees may be required or agree to participate but in which it is they are not a party. The indemnitees APS and its directors, officers, employees, Temporary Staff and agents may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents Temporary Staff serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents Temporary Staff under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners APS in effect for at least $10 30 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners APS may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents the Temporary Staff only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If AlixPartners APS is unable to purchase such D&O insurance, then AlixPartners APS reserves the right to terminate the Agreement. AlixPartners APS is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartnersAPS, whether or not AlixPartners APS is instrumental in procuring the third-party product or service. AlixPartners APS shall not be liable to the Company except for actual damages resulting from breach of this agreement, bad faith, self-dealing or intentional misconduct.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners APS and its affiliates and its and their partners, directors, officers, employees employees, Temporary Staff and agents (collectively, the “indemniteesindemnities”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with to the engagement of AlixPartners that is the subject extent of the Agreementmost favorable indemnities provided by the Company to any of its directors or officers, provided, however, that to the extent any matter for which indemnification is called for hereunder arises while the Company is under the protection of the Bankruptcy Code, indemnification of APS personnel who are not directors or officers of the Company shall be subject to the approval of the Board of Directors of the Company. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay counsel and the costs of AlixPartnersAPS’ professional time (AlixPartnersAPS’ professional time will be reimbursed at AlixPartnersAPS’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee indemnity may be required or agree to participate but in which it is not a party. The indemnitees indemnities may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents Temporary Staff serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If AlixPartners is unable to purchase such D&O insurance, then AlixPartners reserves the right to terminate the Agreement. AlixPartners APS is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartnersAPS, whether or not AlixPartners APS is instrumental in procuring the third-party product or service. AlixPartners APS shall not be liable to the Company except for actual damages resulting from gross negligence, bad faith, self-dealing or intentional misconduct.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners APS and its affiliates and its and their partners, directors, officers, employees owners, Temporary Staff and agents (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with the engagement of AlixPartners APS that is the subject of the Agreement. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay counsel and the costs of AlixPartnersAPS’ professional time (AlixPartnersAPS’ professional time will be reimbursed at AlixPartnersAPS’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a party. The indemnitees may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents Temporary Staff serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents Temporary Staff under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners APS in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners APS may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents the Temporary Staff only. The cost of same shall be invoiced to the Company as an out -of out-of -pocket cash expense. If AlixPartners APS is unable to purchase such D&O insurance, then AlixPartners APS reserves the right to terminate the Agreement. AlixPartners APS is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartnersAPS, whether or not AlixPartners APS is instrumental in procuring the third-party product or service. AlixPartners APS shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing dealing, intentional misconduct or intentional misconductgross negligence.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners and its affiliates and its and their partners, directors, officers, employees and agents Temporary Staff serving as officers (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with to the engagement of AlixPartners that is the subject extent of the Agreementmost favorable indemnities provided by the Company to any of its directors or officers, provided, however, that to the extent any matter for which indemnification is called for hereunder arises while the Company is under the protection of the Bankruptcy Code, indemnification of APS personnel who are not directors or officers of the Company shall be subject to the approval of the Board of Directors of the Company. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay counsel and the costs of AlixPartnersAPS’ professional time (AlixPartnersAPS’ professional time will be reimbursed at AlixPartnersAPS’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a party. The indemnitees may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents Temporary Staff serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents Temporary Staff under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners APS in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners APS may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents the Temporary Staff only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If AlixPartners APS is unable to purchase such D&O insurance, then AlixPartners APS reserves the right to terminate the Agreement. AlixPartners APS is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartnersAPS, whether or not AlixPartners APS is instrumental in procuring the third-party product or service. AlixPartners APS shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing dealing, gross negligence, or intentional misconduct.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners and its affiliates and its and their partners, directors, officers, employees and agents (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with the engagement of AlixPartners that is the subject of the Agreement, except of acts of gross negligence committed by personnel of AlixPartners. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay the costs of AlixPartners’ professional time (AlixPartners’ professional time will be reimbursed at AlixPartners’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a party. The indemnitees may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If AlixPartners is unable to purchase such D&O insurance, then AlixPartners reserves the right to terminate the Agreement. AlixPartners is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartners, whether or not AlixPartners is instrumental in procuring the third-party product or service. AlixPartners shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing or intentional misconduct.

Indemnification and Other Matters. The Company shall indemnify, hold harmless and defend AlixPartners and its affiliates and its and their partners, directors, officers, owners, employees and agents (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with the engagement of AlixPartners that is the subject of the AgreementAgreement to the extent permitted by Delaware Law. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay counsel and the costs of AlixPartners’ professional time (AlixPartners’ professional time will be reimbursed at AlixPartners’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a party. The indemnitees may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates; provided that so long as the Company is honoring its indemnification obligations hereunder, any settlement of an indemnified matter shall require the consent of the Company, which shall not be unreasonably withheld. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents serving as directors or officers of the Company or affiliates from time to time with direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners in effect for at least $10 million (e.g., such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents only. The cost of same shall be invoiced to the Company as an out -of -pocket cash expense. If AlixPartners is unable to purchase such D&O insurance, then AlixPartners reserves the right to terminate the Agreement. AlixPartners is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartners, whether or not AlixPartners is instrumental in procuring the third-party product or service. AlixPartners shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing or intentional misconduct.

Indemnification and Other Matters. The Except as may be caused by APS’ gross negligence or willful misconduct, the Company shall indemnify, hold harmless and defend AlixPartners APS and its affiliates and its and their partners, directors, officers, employees employees, Temporary Staff and agents (collectively, the “indemnitees”) from and against all claims, liabilities, losses, expenses and damages arising out of or in connection with to the engagement of AlixPartners that is the subject extent of the Agreementmost favorable indemnities provided by the Company to any of its directors or officers, provided, however, that to the extent any matter for which indemnification is called for hereunder arises while the Company is under the protection of the Bankruptcy Code, indemnification of APS personnel who are not directors or officers of the Company shall be subject to the approval of the Board of Directors of the Company. The Company shall pay damages and expenses as incurred, including reasonable legal fees and disbursements of counsel. In addition, the Company shall pay counsel and the costs of AlixPartnersAPS’ professional time (AlixPartnersAPS’ professional time will be reimbursed at AlixPartnersAPS’ rates in effect when such future time is required), relating to or arising out of the engagement, including any legal proceeding in which an indemnitee may be required or agree to participate but in which it is not a party. The indemnitees may, but are not required to, engage a single firm of separate counsel of their choice in connection with any of the matters to which this indemnification agreement relates. In addition to the above indemnification, AlixPartners employees serving as directors or officers of the Company or affiliates will be entitled to the benefit of the most favorable indemnities and advancement of expenses provisions provided by the Company to its directors and officers, whether under the Company’s charter or by-laws, by contract or otherwise. The Company shall use its best efforts to specifically include and cover, as a benefit for their protection, AlixPartners employees and agents Temporary Staff serving as directors or officers of the Company or affiliates from time to time with a minimum of $10 million of direct coverage as named insureds under the Company’s policy for directors’ and officers’ (“D&O”) insurance. The Company will maintain such D&O insurance coverage for the period through which claims can be made against such persons. The Subject to reimbursement of reasonable defense costs as may be caused by APS’ gross negligence, willful misconduct or illegal acts, the Company disclaims a right to distribution from the D&O insurance coverage with respect to such persons. In the event that the Company is unable to include AlixPartners employees and agents Temporary Staff under the Company’s policy or does not have first dollar coverage acceptable to AlixPartners in effect for at least $10 million (e.g.policy, such policy is not reserved based on actions that have been or are expected to be filed against officers and directors alleging prior acts that may give rise to a claim), AlixPartners APS may, at its option, attempt to purchase a separate D&O policy that will cover AlixPartners employees and agents the Temporary Staff only. The cost of same shall be invoiced to the Company as an out -of -pocket out-of-pocket cash expense. If AlixPartners APS is unable to purchase such D&O insurance, then AlixPartners APS reserves the right to terminate the Agreement. AlixPartners APS is not responsible for any third-party products or services. The Company’s sole and exclusive rights and remedies with respect to any third party products or services are against the third-party vendor and not against AlixPartnersAPS, whether or not AlixPartners APS is instrumental in procuring the third-party product or service. AlixPartners APS shall not be liable to the Company except for actual damages resulting from bad faith, self-dealing or intentional misconduct.