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

Indemnification; D&O Insurance. (a) The Company shall, and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnification. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.06, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent.

Indemnification; D&O Insurance. (a) The Company shall, Parent and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against Sub agree that all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation for acts or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnification. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each now existing in favor of the current or former directors, officers or employees of the Company and the Company Subsidiaries (each, an “Indemnified Parties currently covered by Party”) as provided in their respective certificates of incorporation or by-laws or in any indemnification Contract between the Company's officers' Company (or any Company Subsidiary) and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy any Indemnified Party as in effect on the date hereof; provided that hereof shall survive the Merger and shall continue in satisfying its obligation under this Section 5.06, full force and effect in accordance with their terms for a period of not less than six (6) years from the Effective Time. (b) Parent shall cause to be maintained for a period of six (6) years from the Effective Time the Company’s current D&O Insurance policy to the extent that it provides coverage for events occurring prior to the Effective Time for all persons who are directors and officers of the Company on the date of this Agreement, so long as the annual premium therefor would not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum last annual premium paid prior to the date of this Agreement (such amount, the “Maximum Premium”). Upon request by Parent, the Company shall use its reasonable best efforts to extend coverage under the Company’s D&O Insurance by obtaining a six-year “tail” policy (provided that the lump sum payment to purchase such coverage does not exceed three (3) times the Maximum Premium) and such “tail” policy shall satisfy Parent’s obligations under this Section 7.06(b). Parent’s obligations under this Section 7.06(b) shall also be satisfied if Parent’s D&O Insurance provides (or is amended to provide) substantially similar coverage for events occurring prior to the Effective Time for persons who are directors and officers of the Company on the date of this Agreement. If the Company’s existing D&O Insurance expires, is terminated or canceled during such six-year period or a “tail” policy cannot be purchased on the terms set forth above and Parent cannot or determines not to satisfy its obligations under this Section 7.06(b) pursuant to the preceding sentence, Parent shall use its reasonable best efforts to cause to be obtained as much D&O Insurance as can be obtained for the remainder of such period for an annualized premium not in excess of the Maximum Premium, on terms and conditions no less advantageous than the existing D&O Insurance. The Company represents to Parent that the last annual premium paid prior to the date of this Agreement is not greater than $50,000. (c) In the event the Surviving Corporation or any of its 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 its last full fiscal yeareach such case, which amount has been disclosed to Parentthe extent necessary, proper provision shall be made so that the successors and assigns of Surviving Corporation assume the obligations set forth in this Section 7.06. (d) The provisions of this Section 7.06 are intended to be for the benefit of, and shall be enforceable by, each identified party and his or her heirs and representatives.

Indemnification; D&O Insurance. (a) Parent shall, to the fullest extent permitted by Applicable Law, cause the Surviving Corporation to honor all the Company’s obligations to indemnify (including any obligations to advance funds for expenses) the current or former directors, officers or employees of the Company and the Company Subsidiaries for acts or omissions by such directors, officers and employees occurring prior to the Effective Time in the manner and to the extent that such obligations of the Company exist on the date of this Agreement, whether pursuant to the Company Charter, the Company By-laws, individual indemnity agreements or otherwise, and such obligations shall survive the Merger and shall continue in full force and effect in accordance with the terms of the Company Charter, the Company By-laws and such individual indemnity agreements from the Effective Time until the expiration of all applicable statutes of limitations with respect to any claims against such directors, officers or employees arising out of such acts or omissions. (b) For a period of six (6) years after the Effective Time, Parent shall cause to be maintained in effect the current policies of directors’ and officers’ liability insurance maintained by the Company and the Company Subsidiaries (provided that Parent may substitute therefor policies with reputable and financially sound carriers of at least the same coverage and amounts containing terms and conditions which are no less advantageous) with respect to claims arising from or related to facts or events which occurred at or before the Effective Time; provided, however, that Parent shall not be obligated to make annual premium payments for such insurance to the extent such premiums exceed 300% of the annual premiums paid as of the date hereof by the Company for such insurance (such 300% amount, the “Maximum Premium”). If such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Maximum Premium, Parent shall maintain the most advantageous policies of directors’ and officers’ insurance obtainable for an annual premium equal to the Maximum Premium. The Company shall, and from represents to Parent that the last annual premium paid prior to the date of this Agreement is not greater than $465,000. (c) From and after the consummation of Effective Time, to the Offerfullest extent permitted by Applicable Law, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to to, indemnify, defend and hold harmless the present and former officers, directors and officers employees of the Company and its the Company Subsidiaries and any employee of the Company or any Company Subsidiary who acts or has acted as a fiduciary under any employee benefit plan of the Company or any Company Subsidiary (the "each an “Indemnified Parties"Party”) from and against all losses, expenses, claims, damages or liabilities arising out damages, liabilities, fees and expenses (including attorneys’ fees and disbursements), judgments, fines and amounts paid in settlement (in the case of settlements, with the approval of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time indemnifying party (including the right to advancement of expenses), shall survive the Merger and which approval shall not be amendedunreasonably withheld)) (collectively, repealed “Losses”), as incurred (payable monthly upon written request which request shall include reasonable evidence of the Losses set forth therein) to the extent arising from, relating to, or otherwise modified for a period in respect of, any actual or threatened action, suit, proceeding or investigation, in respect of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who actions or omissions occurring at or prior to the consummation of the Offer were directors Effective Time in connection with such Indemnified Party’s duties as an officer, director or officers employee of the Company with or any Company Subsidiary, including in respect to occurrences at this Agreement, any other Transaction Agreement, the Merger and the other Transactions; provided, however, that an Indemnified Party shall not be entitled to indemnification under this Section 7.06(c) for Losses arising out of actions or prior to omissions by the consummation Indemnified Party constituting (i) a breach of this Agreement or any other Transaction Agreement, (ii) criminal conduct or (iii) any violation of federal, state or foreign securities laws. (d) In the Offer and Parent shall cause event the Surviving Corporation or any of its 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 honor all any Person, then, and in each such rights case, to indemnificationthe extent necessary, proper provision shall be made so that the successors and assigns of Surviving Corporation assume the obligations set forth in this Section 7.06; provided, that no such transaction shall reduce or diminish Parent’s obligations pursuant to this Section 7.06. (be) For a period The provisions of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.067.06 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Party and his or her heirs and representatives, and Parent shall not be obligated hereby expressly agrees to cause the Surviving Corporation to pay premiums or reimburse any costs and expenses incurred by each such Indemnified Party in excess enforcing the rights granted under this Section 7.06. Parent hereby unconditionally and irrevocably guarantees the due and punctual payment and satisfaction of 200% any and all obligations of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed Surviving Corporation pursuant to Parentthis Section 7.06.

Indemnification; D&O Insurance. (a) The Company shall, and from From and after the consummation of Effective Time, the Offer, Parent shall or Sponsor Parties shall cause NewCo to honor all rights to indemnification, advancement of expenses, elimination of liability and exculpation from liabilities for acts or omissions occurring at or prior to the Surviving Corporation or an affiliate Effective Time (including the Transactions) now existing in favor of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries CLMT Entities (collectively, the "“Indemnified Parties"Persons”) from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate Organizational Documents of Incorporation the CLMT Entities and shall ensure that the Organizational Documents of NewCo (or By-lawsits successor entities) shall, as for a period of no less than six years following the Effective Time, contain provisions substantially no less advantageous with respect to indemnification, advancement of expenses, elimination of liability and exculpation of their present and former directors, officers, employees and agents than are set forth in effect the Organizational Documents of the CLMT Entities as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnificationthis Agreement. (b) For a period of three not less than six years from and after the Effective Time, Parent will the Sponsor Parties shall cause NewCo to maintain for the Surviving Corporation to use its reasonable best efforts to provide benefit of the directors and officers liability of the CLMT Entities, as of the Effective Time, an insurance issued by a reputable insurer in respect of acts and omissions indemnification policy that provides coverage for events occurring prior to the Effective Time covering (the “D&O Insurance”) that is substantially equivalent to and in any event not less favorable in the aggregate than the existing policies of the CLMT Entities or, if such substantially equivalent insurance coverage is unavailable, the best coverage that is reasonably available; provided, however, that in no event shall the annual cost of the D&O Insurance exceed 300% of the current annual premium paid by the CLMT Entities for such purpose (the “Maximum Amount”); provided, further, that if the cost of such insurance coverage exceeds such Maximum Amount, NewCo shall obtain a policy with the greatest coverage available for a cost not exceeding such Maximum Amount. If the Sponsor Parties so elect, then, in lieu of their obligations under this Section 6.08(b), they may (but shall be under no obligation to), prior to the Effective Time, cause CLMT to purchase a “tail policy” with respect to acts or omissions occurring or alleged to have occurred prior to the Effective Time that were committed or alleged to have been committed by such Indemnified Persons in their capacity as such; provided, that in no event shall the cost of such policy exceed the Maximum Amount. (c) The rights of any Indemnified Person under this Section 6.08 shall be in addition to any other rights such Indemnified Person may have under the Organizational Documents of the CLMT Entities, any indemnification agreements, or the DLLCA and DRULPA. The provisions of this Section 6.08 shall survive the consummation of the Transactions and are expressly intended to benefit each of the Indemnified Parties currently covered by Persons and their respective heirs and representatives. The Conversion Agreement shall provide that if NewCo or any of its successors or assigns (i) consolidates with or merges into any other Person, or (ii) transfers or conveys all or substantially all of their businesses or assets to any other Person, then, in each such case, to the Company's officers' extent necessary, a proper provision shall be made so that the successors and directors' liability insurance on terms with respect to coverage and amount no less favorable than those assigns of such policy entities shall assume the obligations set forth in effect on the date hereof; provided that in satisfying its obligation under this Section 5.06, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent6.08.

Indemnification; D&O Insurance. (a) The Company shall, and from From and after the consummation of the OfferEffective Time, Parent shall or shall cause (including by providing adequate funding to) the Surviving Corporation or an affiliate of Parent to indemnifyto, defend and the Surviving Corporation shall, (i) indemnify and hold harmless the harmless, and provide advancement of expenses to, each present and former directors director and officers officer of the Company and its or the Company Subsidiaries (the "Indemnified Parties") from in respect of acts or omissions occurring at or prior to the Effective Time (including with respect to acts or omissions occurring in connection with approval of this Agreement and against all losses, expenses, claims, damages or liabilities arising out the consummation of the transactions contemplated by this Agreement hereby) to the fullest extent provided under in the Company's certificate Company Certificate of incorporation and bylaws Incorporation or the Company Bylaws, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof; , copies of which have been provided that such indemnification shall to Parent and (ii) include and cause to be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing maintained in favor of the directors and officers of the Company as provided effect in the CompanySurviving Corporation's (or any successor's) Certificate of Incorporation or By-lawsand Bylaws for a period of at least six years from and after the Effective Time, as the current provisions regarding elimination of liability of directors, indemnification of officers, directors and employees and advancement of expenses contained in the Company Certificate of Incorporation and Company Bylaws. (b) Parent shall cause (including by providing adequate funding to) the Surviving Corporation to, and the Surviving Corporation shall, maintain in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years from and after the consummation Effective Time the current directors' and officers' liability insurance policies ("D&O Insurance") covered by such policies (provided that the Surviving Corporation may substitute therefor policies of at least the Offer same coverage containing terms and conditions which are, in any manner that would adversely affect the rights of the individuals who aggregate, not materially less favorable) with respect to matters occurring at or prior to the consummation Effective Time; provided, however, that in no event shall the Surviving Corporation be required to expend pursuant to this Section 5.8(b) more than an amount per year equal to one hundred seventy-five percent (175%) of the Offer were directors or officers of current annual premiums paid by the Company for such insurance. In the event that, but for the proviso to the immediately preceding sentence, the Surviving Corporation would be required to expend more than one hundred seventy-five percent (175%) of current annual premiums, the Surviving Corporation shall obtain the maximum amount of such insurance obtainable by payment of annual premiums equal to one hundred seventy-five percent (175%) of current annual premiums, and provided, further, that any substitution or replacement of existing policies shall not result in any gaps or lapses of coverage with respect to occurrences facts, events, acts or omissions occurring at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnificationEffective Time. (bc) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of It is expressly agreed that the Indemnified Parties currently covered by the Company's officers' (including their heirs and directors' liability insurance on terms with respect representatives) to coverage and amount no less favorable than those whom Section 5.8 applies shall be third-party beneficiaries of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.065.8. The provisions of this Section 5.8 are intended to be for the benefit of, Parent shall not and will be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal yearenforceable by, which amount has been disclosed to Parentsuch third-party beneficiaries.

Indemnification; D&O Insurance. (a) The Company shall, articles of incorporation and from and after the consummation by-laws of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless shall contain the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights provisions with respect to indemnification and exculpation existing from liability no less favorable than the provisions set forth in favor Parent’s articles of the directors incorporation and officers of the Company as provided in the Company's Certificate of Incorporation or Byby-laws, as in effect as of laws on the date hereofof this Agreement, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and which provisions shall not be amended, repealed or otherwise modified for a period of six five years after from the consummation of the Offer Effective Time in any manner that in the aggregate would adversely affect have a material adverse effect on the rights thereunder of the individuals who at who, on or prior to the consummation of the Offer Effective Time, were (i) directors or executive officers (the “Indemnified Parties”) of the Company or its Subsidiaries, and (ii) were entitled to mandatory indemnification under the Company’s certificate of incorporation and bylaws, unless such modification is required by law; provided that no indemnification shall be required if it is determined that such Person is not entitled to indemnification under the terms thereof, or (A) as a matter of law or public policy, (B) as a result of a determination that such Indemnified Party breached his fiduciary duties with respect to occurrences at his duty of loyalty, (C) because such Person acted or prior failed to act other than in good faith, or (D) because such person’s actions or failure to act involved intentional misconduct or a knowing violation of law, or (E) such Person’s action or failure to act was in connection with a transaction from which the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnificationIndemnified Party derived an improper personal benefit. (b) For a period of three years after The Company shall use commercially reasonable efforts to maintain in effect through the Effective Time, Parent will cause : (i) the Surviving Corporation to use its reasonable best efforts to provide directors Company’s current directors’ and officers officers’ liability insurance issued by or other directors’ and officers’ liability insurance with a reputable and financially sound insurer that provides coverage that is no less favorable than the Company’s current policy, in respect of each case, covering acts and or omissions occurring prior to the Effective Time covering each of the Indemnified Parties with respect to those persons who are currently covered by the Company's ’s directors’ and officers' and directors' ’ liability insurance policy on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation , and (ii) the Company’s current fiduciary liability insurance policies for employees who serve or have served as fiduciaries under this Section 5.06, Parent shall not be obligated or with respect to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the any Company paid in its last full fiscal year, which amount has been disclosed to ParentBenefit Plan.

Indemnification; D&O Insurance. (a) The Company shallBuyer Parties agree that all rights to indemnification, exculpation and advancement of expenses existing as of the date of this Agreement in favor of the directors, officers, and from and after employees of each Acquired Company Entity (or any other individual acting in such capacity), as provided in the consummation Acquired Company Entities’ Governing Documents or otherwise in effect as of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent date hereof (pursuant to indemnify, defend and hold harmless the present and former directors and officers any Contract set forth in Section 5.06 of the Company and its Subsidiaries Seller Disclosure Schedules) with respect to any matters occurring on or prior to the Closing Date (the "Indemnified Parties") from and against all losses“Existing D&O Arrangements”), expenses, claims, damages or liabilities arising out of shall survive the transactions contemplated by this Agreement and shall continue in full force and effect and that the Buyer Parties shall cause the Acquired Company Entities to perform and discharge the fullest Acquired Company Entities’ obligations to provide such indemnification, exculpation and advancement of expenses. To the maximum extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that permitted by Applicable Law, such indemnification shall be subject mandatory rather than permissive, and the Buyer Parties shall cause the Acquired Company Entities to any limitation imposed from time to time under applicable law. All rights to advance expenses in connection with such indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate applicable Acquired Company Entity’s Governing Documents or such other applicable Contract. The indemnification, liability limitation, exculpation or advancement of Incorporation or By-laws, as in effect as expenses provisions of the date hereofAcquired Company Entities’ Governing Documents shall not, with respect to matters occurring through the Effective Time for six (including the right to advancement of expenses)6) years after Closing, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer Closing in any manner that would adversely affect the rights thereunder of individuals who, as of the individuals who Closing Date or at or any time prior to the consummation Closing Date, were directors, officers or employees of the Offer were directors any Acquired Company Entity (or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all any other individual acting in such rights to indemnificationcapacity), unless such modification is required by Applicable Law. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring At or prior to the Effective Time covering each of Closing Date, Seller shall cause the Indemnified Parties Acquired Company Entities to purchase a prepaid directors’ and officers’ liability insurance policy or policies (i. e., “tail coverage”) (the “D&O Tail”), which policy or policies shall cover those persons who are currently covered by the Company's any Acquired Company Entity’s directors’ and officers' and directors' ’ liability insurance policy or policies on terms with respect to coverage and amount that are no less favorable than those of such policy or policies for an aggregate period of not less than six years from the Closing Date with respect to claims arising from facts or events that occurred at or before the Closing, including with respect to the transactions contemplated by this Agreement. (c) Notwithstanding anything contained in effect this Agreement to the contrary, this Section 5.06 shall survive the Closing indefinitely and shall be binding, jointly and severally, on all successors and assigns of the date hereof; provided Acquired Company Entities. In the event that Buyer Parent, Buyers or any Acquired Company Entity or any of their respective successors or assigns 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 transfers or conveys all or substantially all of its properties and assets to any Person, then, and in satisfying its obligation under each such case, reasonable best efforts shall be used to make proper provision so that the successors and assigns of Buyer Parent or the Acquired Company Entities, as the case may be, shall succeed to the obligations set forth in this Section 5.06. (d) The directors, Parent officers and employees of each Acquired Company Entity (or any other individual acting in such capacity) entitled to the indemnification, liability limitation, exculpation and insurance set forth in this Section 5.06 are express third-party beneficiaries of this Section 5.06 and may enforce their right hereunder. This Section 5.06 shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% binding on all successors and assigns of the amount per annum Buyer Parties and the Acquired Company paid in its last full fiscal year, which amount has been disclosed to ParentEntities.

Indemnification; D&O Insurance. (a) The From and after the Closing, the Company shall, and from and after Summit shall, for a period of six (6) years following the consummation of the OfferClosing Date, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend indemnify and hold harmless the each present and former directors director and officers officer of the Company and its Subsidiaries ANAC Companies, as applicable, other than such Persons who immediately after the Closing are directors, officers, or employees of Cementos or Argos Party or any of their respective Affiliates, against any costs or expenses (the "Indemnified Parties") from and against all including reasonable attorneys’ fees), judgments, fines, losses, expenses, claims, damages or liabilities incurred in connection with any Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the transactions contemplated by this Agreement Closing, whether asserted or claimed prior to, at or after the Closing, to the fullest extent provided that the Company or any of its Subsidiaries, as the case may be, would have been permitted under the Company's certificate Applicable Law and its respective articles of incorporation and incorporation, articles of organization, operating agreement, bylaws or other organizational documents in effect on the date hereofof this Agreement to indemnify such person (including promptly advancing expenses as incurred to the fullest extent permitted under Applicable Law); provided that that, the applicable indemnified Person provides an undertaking to repay any such indemnification shall amounts to the extent such Person is found not to be subject entitled to any limitation imposed from time such amounts pursuant to time under applicable lawa final, non-appealable order of a court of competent jurisdiction or to the extent required by Applicable Law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for For a period of six years after the consummation Closing, Summit shall not, and shall not permit any member of the Offer ANAC Companies to, amend, repeal or modify (in a manner adverse to the beneficiary thereof) any provision in any manner that would adversely affect the rights member of the individuals who at ANAC Companies’ articles of incorporation, articles of organization, operating agreement, bylaws or prior other organizational documents relating to the consummation exculpation or indemnification of any officers or directors, it being the intent of the Offer were Parties hereto that the officers and directors or officers of any member of the Company with respect ANAC Companies on the date hereof shall continue to occurrences at or prior be entitled to such exculpation and indemnification to the consummation full extent of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnificationApplicable Law. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring At or prior to the Effective Time covering each of Closing, the Indemnified Parties Company shall purchase a prepaid directors’ and officers’ liability insurance policy or policies (i.e., “tail coverage”) (the “D&O Tail”), in form and substance reasonably acceptable to Summit, which policy or policies shall cover those persons who are currently covered by the any ANAC Company's ’s directors’ and officers' and directors' ’ liability insurance on terms with respect to policy or policies of not less than the existing coverage and amount under, and otherwise on terms that are no less favorable than than, those of such policy in effect on or policies for an aggregate period of not less than six years from the date hereof; provided Closing Date with respect to claims arising from facts or events that in satisfying its obligation under this Section 5.06occurred at or before the Closing, Parent shall not be obligated including with respect to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to ParentTransactions.

Indemnification; D&O Insurance. (a) The Company shall, and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right 33 38 to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnification. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.065.6, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent.

Indemnification; D&O Insurance. (a) The Company shall, and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against Clorox agrees that all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification for liabilities, and exculpation all limitations with respect to liability, existing in favor of the directors Henkel Directors under the provisions in Articles Eight and officers Nine of the Company as provided in the CompanyClorox's Restated Certificate of Incorporation or By-laws, as otherwise under Clorox's Bylaws or any indemnification agreement in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), hereof shall survive the Merger Exchange and shall not be amendedcontinue in full force and effect, repealed or otherwise modified without any amendment thereto, for a period of six years after from the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior Closing Date to the consummation of fullest extent permitted by law; provided, however, that in the Offer were directors event any claim is asserted or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor made within such six-year period, all such rights to indemnificationrights, liabilities and limitations in respect of any such claim shall continue until disposition thereof. (b) For a period of three six years after from the Effective TimeClosing Date, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors Clorox shall maintain in effect Clorox's current directors' and officers officers' liability insurance issued by a reputable insurer in respect of covering each Henkel Director for acts and or omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance Closing Date on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereofof this Agreement; provided that in satisfying its obligation Clorox may substitute therefor policies of a reputable insurance company the material terms of which, including coverage and amount, are not less favorable to the Henkel Directors than the insurance coverage otherwise required under this Section 5.066.17(b); provided, Parent however, that in no event shall not Clorox be obligated to cause the Surviving Corporation required to pay annualized aggregate premiums for insurance under this Section 6.17(b) in excess of 200% of the amount per annum of the Company aggregate premiums paid by Clorox for the period from July 1, 2003 to, and including, June 30, 2004, for such purpose; provided that Clorox shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. (c) If Clorox or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its last full fiscal yearproperties and assets to any Person, which amount has been disclosed then and in either such case, proper provision shall be made so that the successors and assigns of Clorox shall assume the obligations of Clorox set forth in this Section 6.17. (d) The rights of each Henkel Director hereunder shall be in addition to Parentany other rights such Henkel Director may have under applicable Law, agreement or otherwise. The provisions of this Section 6.17 shall survive the Closing and expressly are intended to benefit each of the Henkel Directors, their heirs and representatives.

Indemnification; D&O Insurance. (a) The Purchaser agrees that, for a period of six (6) years after the Closing Date, it will not amend the Organizational Documents of any BlueMountain Operating Company shallor BlueMountain Subsidiary with respect to any rights to indemnification, advancement of expenses and exculpation in favor of the current or former owners, partners, members, directors, officers or employees of the BlueMountain Operating Companies or BlueMountain Subsidiaries as in effect on the date hereof to the extent that any such amendment would adversely affect the rights, protections or exculpation in favor of any such owner, partner, member, director, officer or employee. (b) Subject to Section 5.9(c), for a period of six (6) years from and after the consummation Closing, Purchaser shall either (i) cause to be maintained in effect the current policies of directors’ and officers’ liability, errors and omissions liability, professional liability, employment practices liability and employee benefit plan fiduciary liability of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend BlueMountain Operating Companies and hold harmless the present and former directors and officers BlueMountain Subsidiaries in effect as of the Company Closing or (ii) provide substitute polices providing for not less than the existing coverage in effect as of the Closing and its Subsidiaries have other terms not less favorable to the insured persons with respect to claims arising from facts or events that occurred at or before the Closing (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out including consummation of the transactions contemplated by this Agreement Agreement) in an amount and scope at least as favorable as the BlueMountain Operating Companies and BlueMountain Subsidiaries’ and their respective current and former owners, partners, members, directors, officers and employees existing policies with respect to matters existing or occurring at or prior to the fullest extent provided under Closing Date. (c) At the Company's certificate request of incorporation Purchaser (and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor the Purchaser’s written approval of the directors cost therefor), the BlueMountain Operating Companies shall, on or prior to Closing, purchase a run off (i.e., “tail”) policy or endorsement with respect to the current policies of directors’ and officers officers’ liability, errors and omissions liability, professional liability, employment practices liability and employee benefit plan fiduciary liability insurance of the Company as provided in the Company's Certificate of Incorporation or By-laws, as BlueMountain Operating Companies and BlueMountain Subsidiaries in effect as of the date hereof, with respect to matters occurring through Closing covering claims asserted within six (6) years after the Effective Time Closing arising from facts or events that occurred at or before the Closing (including consummation of the right transactions contemplated by this Agreement). The entire premium for such “tail” policy, if applicable, shall be paid by the BlueMountain Operating Companies in a single lump sum on or prior to advancement of expensesthe Closing Date. The Purchaser shall cause the BlueMountain Operating Companies and BlueMountain Subsidiaries to not amend, cancel or otherwise terminate such “tail” policy if so obtained by the BlueMountain Operating Companies or BlueMountain Subsidiaries. In the event that the BlueMountain Operating Companies purchase the “tail” policy in accordance with this Section 5.9(c), the obligations of Purchaser pursuant to Section 5.9(b) shall survive be terminated and of no further force or effect. (d) The covenants contained in this Section 5.9 are intended to be for the Merger benefit of, and shall be enforceable by, each of the parties hereto and each indemnified or insured party and shall not be amended, repealed or otherwise modified for a period deemed exclusive of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such other rights to indemnificationwhich such Person is entitled, whether pursuant to law, Contract or otherwise. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.06, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent.

Indemnification; D&O Insurance. (a) The Company Parent shall, and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation to, honor for a period of not less than six (6)-years from the Effective Time (or, in the case of matters occurring at or prior to the Effective Time for which a claim is asserted within the six (6)-year period contemplated by 41 this SECTION 7.05, until such matters are finally resolved), all rights to indemnification or exculpation, existing in favor of a director, officer, employee or agent (an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers "INDEMNIFIED PERSON") of the Company and its or any of the Company Subsidiaries (including, without limitation, rights relating to advancement of expenses and indemnification rights to which such persons are entitled because they are serving as a director, officer, agent or employee of another entity at the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out request of the transactions contemplated by this Agreement to Company or any of the fullest extent Company Subsidiaries), as provided under applicable provisions of the Company's certificate DGCL, the Company Charter, the Company By-laws or any indemnification agreement (true and correct copies of incorporation and bylaws which have been made available to Parent), in each case, as in effect on the date hereofof this Agreement, and relating to actions or events through the Effective Time; provided PROVIDED, HOWEVER, that such indemnification Parent shall not be subject required to indemnify any limitation imposed from time Indemnified Person in connection with any Proceeding (or portion thereof) relating to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation actions or By-laws, as in effect as of the date hereof, with respect to matters occurring events through the Effective Time to the extent involving any claim initiated by such Indemnified Person unless such actions or events were authorized by the Company Board (including the right to advancement of expenses), shall survive the Merger and shall not if board authority would be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or ordinarily obtained prior to the consummation taking of the Offer were directors such action) or officers of the Company unless such Proceeding is brought by an Indemnified Person to enforce rights under this SECTION 7.05; PROVIDED FURTHER that any determination required to be made with respect to occurrences at whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company Charter, the Company Bylaws or prior to any such agreement, as the consummation of the Offer case may be, shall be made by independent legal counsel jointly selected by such Indemnified Person and Parent. (b) Parent shall, or shall cause the Surviving Corporation to honor all such rights to indemnification. (b) For maintain the Company's D&O Insurance for a period of three not less than six (6) years after the Effective Time, ; PROVIDED THAT Parent will cause or the Surviving Corporation may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to such former directors or officers; PROVIDED FURTHER that if the existing D&O Insurance expires or is cancelled during such period, Parent or the Surviving Corporation shall use its reasonable best efforts to provide directors obtain substantially similar D&O Insurance; and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided PROVIDED FURTHER that in satisfying its obligation under this Section 5.06, neither Parent shall not be obligated to cause nor the Surviving Corporation shall be required to pay premiums expend, in order to maintain or procure an annual D&O Insurance policy, an amount in excess of 200% of the amount per annum last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount. (c) The provisions of this SECTION 7.05 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives and shall be binding on all successors and assigns of Parent, the Company paid in its last full fiscal year, which amount has been disclosed to Parentand the Surviving Corporation.

Indemnification; D&O Insurance. (a) The Company shall, and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnification. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.065.6, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent.

Indemnification; D&O Insurance. (a) The Company shallViatel hereby agrees to indemnify you against any and all expenses (including attorney's fees and costs), liabilities, costs, damages, judgments, fines and from amounts paid in settlement, actually and after the consummation of the Offerreasonably hereinafter incurred by you, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent now or hereafter permitted by law, in connection with any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, brought or threatened to be brought against you by reason of your performance as a director, officer, employee, consultant or agent of Viatel. The rights of indemnification provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification shall be subject to any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, with respect to matters occurring through the Effective Time (including the right to advancement of expenses), shall survive the Merger and for herein shall not be amendeddeemed exclusive of any other rights to which you may be entitled under Viatel's By-laws or Certificate of Incorporation, repealed or otherwise modified and shall inure to the benefit of your heirs, executors and administrators. Any expenses (including reasonable attorney's fees and costs) incurred by you in connection with an event for a period of six years after the consummation which indemnification is provided hereunder shall be paid promptly by Viatel in advance of the Offer in any manner final disposition of such action, suit or proceeding upon receipt of an undertaking by you to repay such amount if it shall ultimately be determined that would adversely affect the rights of the individuals who at or prior you are not entitled to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnificationbe indemnified by Viatel as authorized by law. (b) For a period Viatel hereby reaffirms that you shall continue to have those indemnification rights provided for, and for the periods specified in, section 5(j) of three years after the Effective TimeMerger Agreement between Parent, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide Viatel Acquisition Corp. and Destia Communications, Inc. dated as of August 27, 1999. (c) Viatel shall not exclude you from coverage under any directors and officers liability insurance issued by a reputable insurer in respect policy that it maintains generally for some or all of acts its directors and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.06, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent.

Indemnification; D&O Insurance. The Company shall promptly indemnify you to the maximum extent permitted by law against all liabilities, losses, damages and expenses (including but not limited to reasonable attorneys’, accountants’, investment or other advisor and expert witness fees) actually and reasonably incurred by you in connection with any claim or proceeding arising out of, or relating to, your services for the Company. Expenses (including attorneys’ fees) that you incur in defending a threatened or pending civil, criminal, administrative or investigative action, suit or proceeding shall be paid by the Company in advance of the final disposition of such action, suit or proceeding within thirty (30) days after receipt by the Company of (a) a statement or statements from you requesting such advance or advances from time to time, and (b) an undertaking by you or on your behalf to repay such amount or amounts, only if, and to the extent that, it shall ultimately be determined that you are not entitled to be indemnified by the Company as authorized by this Agreement or otherwise. Advances shall be unsecured and interest-free. In the event that final disposition of any such action, suit or proceeding determines that you are not entitled to be indemnified for expenses for which you have received payment or reimbursement, you shall repay such amount to the Company within ninety (90) days of your receipt of an accounting in writing from the Company of the amount owing. Promptly after your receipt of notice of the commencement of any action, suit or proceeding, you shall notify the Company of the commencement thereof. Your failure to promptly notify the Company of the commencement of the action, suit or proceeding, or your request for indemnification, will not relieve the Company from any liability that it may have to you hereunder, except to the extent the Company is prejudiced in its defense of such action, suit or proceeding as a result of such failure. In the event the Company is obligated to pay your expenses with respect to an action, suit or proceeding, as provided in this Agreement, the Company shall be entitled to assume the defense of such action, suit or proceeding, with counsel reasonably acceptable to you, upon the delivery to you of written notice of the Company’s election to do so. After delivery of such notice, your approval of such counsel and the retention of such counsel by the Company, the Company will not be liable to you for any fees of counsel that you subsequently incur with respect to the same action, suit or proceeding, provided that (1) you shall have the right to employ your own counsel in such action, suit or proceeding at your expense and (2) if (i) your employment of counsel has been previously authorized in writing by the Company, (ii) counsel to the Company or you shall have reasonably concluded that there may be a conflict of interest or position, or reasonably believes that a conflict is likely to arise, on any significant issue between the Company and you in the conduct of any such defense or (iii) the Company shall not, in fact, have employed counsel to assume the defense of Xx. Xxxxxxxx Xxxxxxx-Craig such action, suit or proceeding, then the fees and expenses of your counsel shall be at the Company’s expense, except as otherwise expressly provided by this Agreement. The Company shallshall not be entitled, and from and after without your consent, to assume the consummation defense of any claim brought by or in the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers right of the Company or as to which counsel for the Company or you shall have reasonably made the conclusion provided for in clause (ii) above. Your rights under this paragraph shall apply both during your employment and its Subsidiaries (the "Indemnified Parties") from at all times thereafter, and against all lossesshall be in addition to, expensesnot in lieu of, claims, damages any other rights to indemnification or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided advancement you may have under the Company's certificate of incorporation ’s organizational documents or insurance policies, or under applicable law or otherwise. In addition, during your employment and bylaws in effect on the date hereof; provided that such indemnification for six years thereafter, you shall be subject entitled to directors’ and officers’ insurance coverage that is no less favorable to you in any limitation imposed from time to time under applicable law. All rights to indemnification and exculpation existing in favor of respect than the directors and officers of the Company as provided in the Company's Certificate of Incorporation or By-laws, as in effect as of the date hereof, coverage then enjoyed by any other individual with respect to matters occurring through his or her service as a director or officer during the Effective Time (including the right to advancement of expenses), shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six years after the consummation of the Offer in any manner that would adversely affect the rights of the individuals who at or prior to the consummation of the Offer were directors or officers of the Company with respect to occurrences at or prior to the consummation of the Offer and Parent shall cause the Surviving Corporation to honor all such rights to indemnificationRetention Period. (b) For a period of three years after the Effective Time, Parent will cause the Surviving Corporation to use its reasonable best efforts to provide directors and officers liability insurance issued by a reputable insurer in respect of acts and omissions occurring prior to the Effective Time covering each of the Indemnified Parties currently covered by the Company's officers' and directors' liability insurance on terms with respect to coverage and amount no less favorable than those of such policy in effect on the date hereof; provided that in satisfying its obligation under this Section 5.06, Parent shall not be obligated to cause the Surviving Corporation to pay premiums in excess of 200% of the amount per annum the Company paid in its last full fiscal year, which amount has been disclosed to Parent.

Indemnification; D&O Insurance. (a) The Company shall, and from and after the consummation of the Offer, Parent shall or shall cause the Surviving Corporation or an affiliate of Parent to indemnify, defend and hold harmless the present and former directors and officers of the Company and its Subsidiaries (the "Indemnified Parties") from and against all losses, expenses, claims, damages or liabilities arising out of the transactions contemplated by this Agreement to the fullest extent provided under the Company's certificate of incorporation and bylaws in effect on the date hereof; provided that such indemnification by-laws of the Surviving Corporation shall be subject to any limitation imposed from time to time under applicable law. All rights contain provisions with respect to indemnification and exculpation existing in favor of from liability no less favorable than the directors and officers of the Company as provided provisions set forth in the Company's Certificate articles of Incorporation or Byincorporation and by-laws, as in effect as of laws on the date hereofof this Agreement, with respect to matters occurring through which provisions, so long as the Effective Time (including the right to advancement Surviving Corporation maintains its corporate existence and is a direct or indirect Subsidiary of expenses)Parent, shall survive the Merger and shall not be amended, repealed or otherwise modified for a period of six (6) years after from the consummation of the Offer Effective Time in any manner that in the aggregate would adversely have a material adverse affect on the rights thereunder of the individuals who at on or prior to the consummation of the Offer Effective Time were directors directors, officers or officers employees of the Company with respect or its Subsidiaries and were entitled to occurrences at or prior to indemnification under the consummation Company's articles of the Offer incorporation and Parent shall cause the Surviving Corporation to honor all bylaws, unless such rights to indemnification. (b) For a period of three years modification is required by law. From and after the Effective Time, Parent will cause and the Surviving Corporation (so long as it maintains its corporate existence and is a direct or indirect Subsidiary of Parent), except as provided in the case of clauses (A), (B) and (C) of this Section 5.15(a), shall, to use its reasonable best efforts to provide the fullest extent permitted under applicable law, or under the Surviving Corporation's Certificate of Incorporation or By-laws, indemnify and hold harmless, each of the directors and officers liability insurance issued by a reputable insurer of the Company as of the date of this Agreement (the "Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages, liabilities and, subject to the proviso of the next succeeding sentence, amounts paid in respect settlement in connection with any threatened, pending or completed civil claim, action, suit, proceeding or investigation arising out of any acts and or omissions occurring at or prior to the Effective Time covering each (and whether asserted or claimed prior to, at or after the Effective Time) that are, in whole or in part, based on or arising out of the Indemnified Parties currently covered by fact that such person is or was a director, officer or employee of the Company's officers' and directors' liability insurance on terms Company or any of its Subsidiaries or served as a fiduciary under or with respect to coverage any employee benefit plan (within the meaning of Section 3(3) of ERISA) at any time maintained by or contributed to by the Company or any of its Subsidiaries ("Indemnified Liabilities") and amount no less favorable all Indemnified Liabilities to the extent they are based on or arise out of the transactions contemplated by this Agreement, in each case until the expiration of the applicable statute of limitations. If the Offer shall have been closed, then in the event of any such threatened, pending or completed claim, action, suit, proceeding, or investigation (whether or not arising before the Changeover Time or the Effective Time), (1) the Parent shall, subject to the limitations set forth herein and applicable law, pay the reasonable fees and expenses of counsel, selected by the Indemnified Parties, which counsel shall be reasonably satisfactory to the Parent promptly after statements therefor are received and otherwise advance to such Indemnified Party, upon request reimbursement of documented expenses reasonably incurred, such payments shall be made in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each Indemnified Party to the full extent permitted by applicable law, provided that the person to whom expenses are advanced provides an undertaking to repay such advance if it is ultimately determined that such person is not entitled to indemnification including, without limitation, (A) as a matter of law or public policy, (B) as a result of a determination that such Indemnified Party breached his fiduciary duties with respect to his duty of loyalty , that such person acted or failed to act other than those in good faith or that such person's actions or failure to act involved intentional misconduct or a knowing violation of law or was in connection with a transaction from which the Indemnified Party derived an improper personal benefit or was in violation of D.G.C.L. ss.174, or (C) to the extent such fees and expenses are attributable to an aspect of such policy claim, action, suit, proceeding or investigation in effect on which a person was not the date hereofprevailing party, (2) the Parent and the Company will cooperate in the defense of such matter, and (3) any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under applicable law and the articles of incorporation or bylaws shall be made by independent counsel mutually acceptable to the Parent and the Indemnified Party; provided provided, however, that in satisfying its obligation under this Section 5.06, the Parent shall not be obligated liable for any settlement effected without its written consent (which consent shall not be unreasonably withheld or delayed); and provided, further, that, in the event that any claim or claims for indemnification are asserted or made within such applicable statute of limitations, all rights to cause indemnification in respect of any such claim or claims shall continue until the Surviving Corporation disposition of any and all such claims. The Indemnified Parties, as a group, may retain only one law firm to pay premiums represent them, subject to any requirements to associate local counsel, in excess each applicable jurisdiction unless there is, under applicable standards of 200% professional conduct, a conflict on any significant issue between the positions of the amount per annum the Company paid any two or more Indemnified Parties, in its last full fiscal yearwhich case each Indemnified Person with respect to whom such a conflict exists (or group of such Indemnified Persons who, which amount has been disclosed among them, have no such conflict) may retain one separate law firm, subject to Parentany requirement to associate local counsel in each applicable jurisdiction.