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

Indemnification; D&O Insurance. Employer shall indemnify Executive against all claims, suits, actions and/or proceeding arising by reason of Executive’s status as an officer, director, and/or agent of Employer (including, without limitation, claims, actions and/or proceedings arising out of the employment or engagement of any individual or entity by Employer and in which the complaining party alleges that such employment, engagement, or performance of services violates an agreement pursuant to which such individual or entity is bound) to the fullest extent provided (A) by Employer’s Articles of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (C) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”), as each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available under such policies, and (C) Executive shall continue to be covered by such policies both during the Term and following the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of Employer. The foregoing provisions of this Section 5.05 are a supplement to and in furtherance of the Company’s Articles of Incorporation and By-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement, and shall not be deemed a substitute therefore, no to diminish or abrogate any rights of Executive thereunder.

Indemnification; D&O Insurance. Employer (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 indemnify Executive 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 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 Effective Time, to the fullest extent permitted by Applicable Law, Parent shall cause the Surviving Corporation to, indemnify, defend and hold harmless the present and former officers, directors and employees of the Company and 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 (each an “Indemnified Party”) against all losses, claims, suitsdamages, 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 indemnifying party (which approval shall not be unreasonably withheld)) (collectively, “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 in respect of, any actual or threatened action, suit, proceeding or investigation, in respect of actions and/or proceeding arising by reason of Executiveor omissions occurring at or prior to the Effective Time in connection with such Indemnified Party’s status duties as an officer, directordirector or employee of the Company or any Company Subsidiary, and/or agent of Employer (includingincluding in respect to this Agreement, without limitationany other Transaction Agreement, claimsthe Merger and the other Transactions; provided, actions and/or proceedings however, that an Indemnified Party shall not be entitled to indemnification under this Section 7.06(c) for Losses arising out of actions or omissions by the employment Indemnified Party constituting (i) a breach of this Agreement or engagement any other Transaction Agreement, (ii) criminal conduct or (iii) any violation of federal, state or foreign securities laws. (d) In the event the Surviving Corporation or any individual 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 by Employer 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 which each such case, to the complaining party alleges 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 employment, engagement, transaction shall reduce or performance of services violates an agreement diminish Parent’s obligations pursuant to which such individual or entity is boundthis Section 7.06. (e) to the fullest extent provided (A) by Employer’s Articles of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (C) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”), as each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available under such policies, and (C) Executive shall continue to be covered by such policies both during the Term and following the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of Employer. The foregoing provisions of this Section 5.05 7.06 are a supplement intended to and in furtherance of be for the Company’s Articles of Incorporation and By-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreementbenefit of, and shall not be deemed a substitute thereforeenforceable by, no each Indemnified Party and his or her heirs and representatives, and Parent hereby expressly agrees to diminish cause the Surviving Corporation to pay or abrogate reimburse any costs and expenses incurred by each such Indemnified Party in enforcing the rights granted under this Section 7.06. Parent hereby unconditionally and irrevocably guarantees the due and punctual payment and satisfaction of Executive thereunderany and all obligations of the Surviving Corporation pursuant to this Section 7.06.

Indemnification; D&O Insurance. Employer shall indemnify Executive against all claims, suits, actions and/or proceeding arising by reason of Executive’s status as an officer, director, and/or agent of Employer (including, without limitation, claims, actions and/or proceedings arising out of the employment or engagement of any individual or entity by Employer and in which the complaining party alleges that such employment, engagement, or performance of services violates an agreement pursuant to which such individual or entity is bound) to the fullest extent provided (A) by Employer’s Articles of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (C) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September __, 2009 (the “Indemnification Agreement”), as each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available under such policies, and (C) Executive shall continue to be covered by such policies both during the Term and following the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of Employer. The foregoing provisions of this Section 5.05 are a supplement to and in furtherance of the Company’s Articles of Incorporation and By-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement, and shall not be deemed a substitute therefore, no to diminish or abrogate any rights of Executive thereunder.

Indemnification; D&O Insurance. Employer (a) For six (6) years after the Closing Date, Purchaser shall cause the Company and its Subsidiaries to exculpate, indemnify Executive against and hold harmless, and provide advancement of costs and expenses to, all claimspast and present directors, suitsmanagers, actions and/or proceeding arising by reason of Executive’s status as an officer, director, and/or agent of Employer (including, without limitation, claims, actions and/or proceedings arising out officers and employees of the employment or engagement of any individual or entity by Employer Company and in which the complaining party alleges that such employmentSubsidiaries (collectively, engagement, or performance of services violates an agreement pursuant to which such individual or entity is boundthe “Company Indemnitees”) to the fullest same extent provided (A) by Employer’s Articles such Company Indemnitees were exculpated, indemnified, held harmless or had the right to advancement of Incorporation and/or Bylaws, (B) under Employer’s Directors costs and Officers Liability and general insurance policies, (C) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”), expenses as each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms of immediately prior to the maximum extent of Closing by the coverage available under such policies, Company and (C) Executive shall continue the Subsidiaries pursuant to be covered by such policies both during the Term and following Company Organizational Documents in existence on the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of Employer. The foregoing provisions date of this Section 5.05 are a supplement Agreement with, or for the benefit of, any such Company Indemnitees for matters, acts or omissions occurring on or prior to and in furtherance of the Company’s Articles of Incorporation and By-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification AgreementClosing. Purchaser shall, and shall cause the Company and its Subsidiaries to: (i) maintain provisions in the Company Organizational Documents no less favorable with respect to the exculpation, advancement of costs and expenses and indemnification of the Company Indemnitees set forth in the Company Organizational Documents as of the date hereof, which provisions shall not be deemed amended or repealed for a substitute thereforeperiod of six (6) years from the Closing Date in any manner that would adversely affect the rights thereunder of any Company Indemnitee; and (ii) maintain in effect indefinitely following the Closing all rights to indemnification as provided in any indemnification agreements with any current or former directors, no officers, managers, employees and agents of the Company or any of its Subsidiaries, as in effect immediately prior to diminish the Closing with respect to matters, acts or abrogate any rights of Executive thereunderomissions occurring on or prior to the Closing.

Indemnification; D&O Insurance. Employer shall indemnify Executive against all claims, suits, actions and/or proceeding arising (a) All rights to indemnification by reason of Executive’s status as an officer, director, and/or agent of Employer (including, without limitation, claims, actions and/or proceedings arising out the Acquired Companies existing in favor of the employment or engagement D&O Indemnified Parties for their acts and omissions occurring prior to the Closing, as provided in the Governing Documents of any individual or entity such Acquired Company, in each case, as in effect on the date of this Agreement, shall survive the Closing and shall be observed by Employer and in which the complaining party alleges that such employment, engagement, or performance of services violates an agreement pursuant to which such individual or entity is boundSurviving Corporations (following the Closing) to the fullest extent provided (A) by Employer’s Articles available under Applicable Law for a period of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (C) under [***] from the Delaware General Corporation LawEffective Time, and (D) under the any claim made requesting indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”), as each may be amended from time pursuant to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available under indemnification rights within such policies, and (C) Executive six-year period shall continue to be subject to this Section 10.06(a) until disposition of such claim. (b) At or prior to the Closing Date, the Companies shall 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 any Acquired Company’s directors’ and officers’ 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 both during (and other terms reasonably satisfactory to Parent) for an aggregate period of not less than [***] with respect to claims arising from facts or events that occurred at or before the Term Closing, including with respect to the transactions contemplated by this Agreement. The obligations of Parent, the Surviving Corporations and following the termination of Executive’s employment their respective Subsidiaries and Affiliates with Employer so long as Executive shall be or may be subject respect to any claimsright of indemnification, suitsadvancement, actions and/or proceedings by reason reimbursement or contribution, whether under Applicable Law, Contract, Governing Documents or otherwise, of Executive’s status as (or former status as) to any Person who is now, has been at any time prior to the date hereof or becomes prior to or after the Closing an officer, directordirector or employee of the Acquired Companies (each, and/or agent a “D&O Indemnified Party”), against any and all Damages or Liabilities based in whole or in part on, or arising in whole or in part out of, the fact that such Person is or was an officer, director or employee of Employer. an Acquired Company, and pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Closing, whether asserted or claimed prior to, at or after the Closing (including matters, acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby) may be satisfied in full by making the proceeds, if any, under the D&O Tail available to Seller for the benefit of the D&O Indemnified Parties. (c) In the event the Surviving Corporations or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties or assets to any Person, then, and in each such case, Parent shall ensure that the successors and assigns of the Surviving Corporation, as applicable, or at Parent’s option, Parent, shall assume the obligations set forth in this Section 10.06. (d) The foregoing terms and provisions of this Section 5.05 10.06 are a supplement intended to and in furtherance be enforceable by any of the Company’s Articles D&O Indemnified Parties and their respective heirs and Representatives, each of Incorporation and Bywhom is an intended third-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement, and shall party beneficiary of this Section 10.06. This Section 10.06 may not be deemed a substitute thereforeamended, no altered or repealed after the Closing in such manner as to diminish or abrogate any adversely affect the rights of Executive thereunderany D&O Indemnified Party or any of their successors, assigns or heirs without the prior written consent of the affected D&O Indemnified Party.

Indemnification; D&O Insurance. Employer shall indemnify (a) If the Executive against all claimsis made a party, suitsis threatened to be made a party, actions and/or proceeding arising or reasonably anticipates being made a party, to any Proceeding by reason of the fact that he is or was a director, officer, member, employee, agent, manager, trustee, consultant or representative of the Company or any of its subsidiaries, or is or was serving at the request of the Company or any of its subsidiaries, or in connection with his service hereunder, as a director, officer, member, employee, agent, manager, trustee, consultant or representative of another Person, or if any Claim is made, is threatened to be made, or is reasonably anticipated to be made, that arises out of or relates to the Executive’s status service in any of the foregoing capacities, then the Executive shall promptly be indemnified and held harmless to the fullest extent permitted or authorized by the Certificate of Incorporation or Bylaws of the Company, or if greater, by applicable law, against any and all reasonable and appropriately documented costs, expenses, liabilities and losses incurred or suffered by the Executive in connection therewith, and such indemnification shall continue as an to the Executive even if he has ceased to be a director, officer, directormember, and/or agent employee, agent, manager, trustee, consultant or representative of Employer the Company or of any of its subsidiaries or other Person and shall inure to the benefit of his heirs, executors and administrators. The Executive shall be entitled to prompt advancement of any and all appropriately documented costs and expenses (including, without limitation, claimsattorneys’ and other professional fees and charges) reasonably incurred by him in connection with any such Proceeding or Claim, actions and/or proceedings arising out any such advancement to be made within 15 days after the Executive gives written notice, supported by reasonable documentation, requesting such advancement. Such notice shall include an undertaking by the Executive to repay the amounts advanced to the extent that he is ultimately determined not to be entitled to indemnification against such costs and expenses. Nothing in this Agreement or elsewhere shall operate to limit or extinguish any right to indemnification, advancement of the employment or engagement of any individual or entity by Employer and in which the complaining party alleges that such employment, engagementexpenses, or performance of services violates an contribution that the Executive would otherwise have (including, without limitation, by agreement pursuant to which such individual or entity is bound) to the fullest extent provided (A) by Employer’s Articles of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (C) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”applicable law), as each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available under such policies, and (C) Executive shall continue to be covered by such policies both during the Term and following the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of Employer. The foregoing provisions For purposes of this Section 5.05 are a supplement to and in furtherance of the Company’s Articles of Incorporation and By-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement, and “Proceeding” shall not be deemed a substitute thereforemean any actual, no to diminish threatened or abrogate any rights of Executive thereunderreasonably anticipated action, suit or proceeding, whether civil, criminal, administrative, investigative, appellate, formal, informal or other.

Indemnification; D&O Insurance. Employer shall indemnify Executive against all claims, suits, actions and/or proceeding arising by reason Pursuant to the provisions of Executive’s status its Articles of Association and the D&O indemnification agreements in effect as an officer, director, and/or agent of Employer (including, without limitation, claims, actions and/or proceedings arising out of the employment date of the Closing, the Company will, and Purchaser shall cause the Company to, indemnify and hold harmless the present and former officers and directors of the Company and each of the Subsidiaries in respect of acts or engagement of any individual or entity by Employer omissions occurring while such persons are officers and in which the complaining party alleges that such employment, engagement, or performance of services violates an agreement pursuant to which such individual or entity is bound) directors to the fullest same or greater extent as is provided (A) by Employer’s Articles of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (Ci) under the Delaware General Corporation Law, Company's or the Subsidiary's Articles of Association or other governing documents as of the date hereof and (Dii) under the D&O indemnification agreement between Employer agreements in effect as of the date hereof. Purchaser will not amend, repeal or modify (and Executive dated September , 2009 (will procure that no successor of Purchaser will amend repeal or modify) such provisions in any manner that would adversely affect the “Indemnification Agreement”)rights thereunder of such persons. In addition, as of the Closing, the Company shall have taken (and Purchaser will cause Company to take) such action necessary to provide directors' and officers' liability insurance coverage on terms and amounts no less favorable than those of such policy in effect on the date of this Agreement for any current or former officers and directors of the Company and each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors Subsidiary under the Company's or Purchaser's directors' and Officers Liability and general officers' liability insurance policies in amounts sufficient with respect to fund the indemnity described above, (B) Executive shall be covered any actions or omissions by such policies in accordance with their terms directors or officers occurring prior to the maximum extent of the coverage available under such policiesClosing, and shall maintain such coverage for a period of six (C6) Executive shall continue to be covered by such policies both during years from the Term and following the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of EmployerClosing Date. The foregoing provisions of this Section 5.05 6.10 shall survive the Closing and are a supplement (a) expressly intended to and in furtherance benefit each of the Company’s Articles present and former officers and directors of Incorporation the Company and By-laws each Subsidiary (or his or her heirs or representatives) who are entitled to indemnification by the Company or such Subsidiary as of the date of this Agreement and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement(b) in addition to, and shall not be deemed a substitute thereforein substitution for, no any other rights to diminish indemnification or abrogate contribution that any rights of Executive thereundersuch Person may have by contract or otherwise.

Indemnification; D&O Insurance. Employer shall indemnify (a) If the Executive against all claimsis made a party, suitsis threatened to be made a party, actions and/or proceeding arising or reasonably anticipates being made a party, to any Proceeding by reason of the fact that he is or was a director, officer, member, employee, agent, manager, trustee, consultant or representative of the Company or any of its subsidiaries, or is or was serving at the request of the Company or any of its subsidiaries, or in connection with his service hereunder, as a director, officer, member, employee, agent, manager, trustee, consultant or representative of another Person, or if any Claim is made, is threatened to be made, or is reasonably anticipated to be made, that arises out of or relates to the Executive’s status service in any of the foregoing capacities, then the Executive shall promptly be indemnified and held harmless to the fullest extent permitted or authorized by the Certificate of Incorporation or Bylaws of the Company, or if greater, by applicable law, against any and all reasonable and appropriately documented costs, expenses, liabilities and losses incurred or suffered by the Executive in connection therewith, and such indemnification shall continue as an to the Executive even if he has ceased to be a director, officer, directormember, and/or agent employee, agent, manager, trustee, consultant or representative of Employer the Company or of any of its subsidiaries or other Person and shall inure to the benefit of his heirs, executors and administrators. The Executive shall be entitled to prompt advancement of any and all appropriately documented costs and expenses (including, without limitation, claimsattorneys’ and other professional fees and charges) reasonably incurred by him in connection with any such Proceeding or Claim, actions and/or proceedings arising out any such advancement to be made within 15 days after the Executive gives written notice, supported by reasonable documentation, requesting such advancement. Such notice shall include an undertaking by the Executive to repay the amounts advanced to the extent that he is ultimately determined not to be entitled to indemnification against such costs and expenses. Nothing in this Agreement or elsewhere shall operate to limit or extinguish any right to indemnification, advancement of the employment or engagement of any individual or entity by Employer and in which the complaining party alleges that such employment, engagementexpenses, or performance of services violates an agreement pursuant to which such individual or entity is bound) to contribution that the fullest extent provided (A) by Employer’s Articles of Incorporation and/or Bylaws, (B) under Employer’s Directors and Officers Liability and general insurance policies, (C) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”), as each may be amended from time to time. Employer agrees (A) it will continue to maintain Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described above, (B) Executive shall be covered by such policies in accordance with their terms to the maximum extent of the coverage available under such policies, and (C) Executive shall continue to be covered by such policies both during the Term and following the termination of Executive’s employment with Employer so long as Executive shall be or may be subject to any claims, suits, actions and/or proceedings by reason of Executive’s status as (or former status as) an officer, director, and/or agent of Employer. The foregoing provisions of this Section 5.05 are a supplement to and in furtherance of the Company’s Articles of Incorporation and By-laws (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement, and shall not be deemed a substitute therefore, no to diminish or abrogate any rights of Executive thereunder.

Indemnification; D&O Insurance. Employer During the Term and thereafter, the Company shall indemnify Executive and hold harmless Employee from and against any and all claimslosses, suits, actions and/or proceeding actions, causes of action, judgments, damages, liabilities, penalties, fines, costs or claims of any kind or nature relating to or arising by reason of Executiveout (a) Employee’s status position as an officer, director, employee and/or agent of Employer the Company or any of any of its Subsidiaries or other affiliates (includingor, without limitationif applicable, claimshis former position as an officer, actions and/or proceedings arising out director, employee or agent of the employment Company or engagement any of its Subsidiaries or other affiliates), (b) Employee’s position or service as a trustee or committee member of, or with respect to, any of the Company’s or any of its Subsidiaries’ or other affiliates’ employee benefit plans (or, if applicable, his former position as a trustee or committee member of, or with respect to, any of the Company’s or any of Subsidiaries’ or other affiliates’ employee benefit plans, and/or (c) Employee’s position as an officer or director of any individual other entity at the request of the Company or any of its Subsidiaries or other affiliates (or, if applicable, his former position as an officer or director of any other entity by Employer and at the request of the Company or any of its Subsidiaries or other affiliates), in which the complaining party alleges that such employmenteach case, engagement, or performance of services violates an agreement pursuant to which such individual or entity is bound) to the fullest extent provided (Ai) by Employerthe Company’s Articles of Incorporation and/or Bylawsorganizational documents, (Bii) under Employerthe Company’s Directors and Officers Liability and general insurance policies, or (Ciii) under the Delaware General Corporation Law, and (D) under the indemnification agreement between Employer and Executive dated September , 2009 (the “Indemnification Agreement”), as each may be amended from time to timelaw. Employer The Company agrees that it (A) it will continue to maintain a Directors and Officers Liability and general insurance policies in amounts sufficient to fund the indemnity described abovepolicy, (B) Executive Employee shall be covered by under such policies policy in accordance with their its terms to the maximum extent of the coverage available under such policiespolicy, and (C) Executive Employee shall continue to be covered by such policies policy both during the Employment Term and following the termination of ExecutiveEmployee’s employment with Employer (for any reason) so long as Executive Employee shall be or may be subject to any claims, suits, actions and/or proceedings by reason of ExecutiveEmployee’s status as (or former status as) an officer, director, director and/or agent of Employer. the Company or any of its Subsidiaries or other affiliates The foregoing provisions of this Section 5.05 9 are a supplement to and in furtherance of the Company’s Articles of Incorporation and By-laws organizational documents (and any resolutions adopted pursuant thereto), as well as the Indemnification Agreement, ) and shall not be deemed a substitute therefore, no nor to diminish or abrogate any rights of Executive Employee thereunder.