Common use of Indemnification, Exculpation and Insurance Clause in Contracts

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company as provided in the Company Certificate, the Company By-laws or any indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay aggregate annual premiums in excess of 200% of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000), it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. (d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause Each of the Surviving Corporation to assume the obligations with respect to Company, Merger Sub A and Merger Sub B agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors directors, officers, employees or officers fiduciaries under benefit plans currently indemnified of FPL and its subsidiaries or Entergy and its subsidiaries, as the Company case may be, as provided in the Company Certificatetheir respective certificates of incorporation, the Company Byby-laws (or any comparable organizational documents) or other agreements providing indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger Mergers and shall continue in full force and effect in accordance with their terms. In addition, from and after the Effective Time, directors, officers, employees and fiduciaries under benefit plans currently indemnified of FPL or Entergy or their respective subsidiaries who become directors, officers, employees or fiduciaries under benefit plans of the Company will be entitled to the indemnity rights and protections afforded to directors, officers, employees and fiduciaries under benefit plans of the Company. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05. (c) For six years after the Effective Time, Parent the Company shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Companydirectors' and officers' liability (and fiduciary) insurance policies currently maintained by FPL and Entergy covering acts or omissions occurring prior to the Effective Time with respect to those persons who are currently covered by FPL's current and Entergy's respective directors' and officers' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), policies on terms with respect to such coverage and amount in amounts no less favorable than those of such set forth in the relevant policy in effect on the date hereof; providedof this Agreement. If such insurance coverage cannot be maintained, however, that Parent may (i) substitute therefor the Company shall maintain the most advantageous policies of Parent containing terms with respect to coverage directors' and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing officers' insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay aggregate annual premiums in excess of 200% of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000), it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amountotherwise obtainable. (dc) The provisions of this Section 5.05 5.08(a) (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to and Sub agree that all rights to indemnification indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or and officers of the Company and its subsidiaries as provided in the Company Certificate, the Company Bytheir respective certificates of incorporation or by-laws (or any indemnification agreement between such directors similar organizational documents), under the DGCL or officers otherwise shall be assumed and performed by the Company (in each case, as in effect on the date hereof)Surviving Corporation, without further action, as of at the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their termsterms from and after the Effective Time. (b) In the event that Parent, the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors successor and assigns assign of Parent or the Surviving Corporation shall expressly assume assumes the obligations set forth in this Section 5.05, and in such event all references to the Surviving Corporation in this Section 5.05 shall be deemed a reference to such successor and assign. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered for acts or omissions occurring prior to Parent), the Effective Time on terms with respect to such coverage and amount amounts no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date hereofof this Agreement; provided that Parent may substitute therefor insurance policies of a reputable and financially sound insurance company the terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the insurance coverage otherwise required under this Section 5.05(c); provided, however, that in no event shall Parent may (i) substitute therefor policies of Parent containing terms with respect be required to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing pay annual premiums for insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay aggregate annual premiums ) in excess of 200% of the amount of the aggregate premiums paid by the Company in its last full for fiscal year 2004 for such purpose (which fiscal year 2004 premiums are hereby represented and warranted by the Company to be $301,000314,000), it being understood and agreed ; provided that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. The Company will seek to obtain, and may obtain, prior to the acceptance of shares of Company Common Stock in the Offer, irrevocable directors' and officers' liability insurance having a term of six years which covers the items described in this Section 5.05(c); provided, that, (i) the Company may only obtain such insurance if the cost thereof is $942,000 or less and reasonable advance notice is provided to Parent and (ii) prior to the acceptance of shares of Company Common Stock in the Offer, Parent may require the Company to substitute therefor insurance policies of a reputable and financially sound insurance company the terms of which, including coverage and amount, are no less favorable in any material respect to insurance proposed to be obtained by the Company. (d) Parent shall cause the Surviving Corporation to comply with its obligations set forth in this Section 5.05, including by promptly providing any necessary funds to satisfy such obligations. (e) The provisions of this Section 5.05 (i) shall survive consummation of the Merger and are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwiserepresentatives.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to all All rights to indemnification and exculpation (including any rights related to the advancement of expenses) from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company as provided in the Company Certificate, the Company By-laws or any indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof)of this Agreement) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.055.07. (c) For a period of six years from and after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's ’s current directors' ’ and officers' ’ liability insurance in respect of covering acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's ’s directors' ’ and officers' ’ liability insurance policy (a complete and accurate correct copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereofof this Agreement; provided, however, that Parent may (i) substitute therefor policies of Parent or its subsidiaries containing terms with respect to coverage and amount no less favorable in any material respect to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date)officers; provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor 5.07(c) Parent shall not be obligated to pay aggregate annual premiums for insurance under this Section 5.07(c) in excess of 200150% of the amount of the aggregate premiums paid by the Company in its last full fiscal calendar year 2001 for such purpose (which calendar year 2001 aggregate premiums are hereby represented and warranted by the Company hereby represent and warrant to be $301,000222,000), ; it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200150% amount. Notwithstanding anything in this Section 5.07(c) to the contrary, Parent’s obligation to provide directors’ and officers’ liability insurance coverage under this Section 5.07(c) shall cease immediately upon such time, if any, as Parent shall have assumed the obligations of the Surviving Corporation under Section 5.07(a), regardless of whether any such time occurs within six years from and after the Effective Time. (d) The provisions of this Section 5.05 5.07 (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to White agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company Green and its subsidiaries as provided in the Company Certificatetheir respective certificates of incorporation or by-laws (or comparable organizational documents) and any indemnification agreements of Green, the Company By-laws or any indemnification agreement between such directors or officers and existence of which does not constitute a breach of this Agreement, shall be assumed by the Company (Surviving Corporation in each case, as in effect on the date hereof)Merger, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. In addition, from and after the Effective Time, directors and officers of Green who become directors or officers of White shall be entitled to the same indemnity rights and protections as are afforded to other directors and officers of White. (b) In the event that the Surviving Corporation White or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to will be made so that the successors and assigns of the Surviving Corporation shall expressly White assume the obligations set forth in this Section 5.05Section. (c) For six three years after the Effective Time, Parent White shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directorsprovide, if available on commercially reasonable terms, officers' and officersdirectors' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, including but not limited to the transactions contemplated by this Agreement, covering each person currently covered by the CompanyGreen's directorsofficers' and officersdirectors' liability insurance policy, or who becomes covered by such policy (a complete and accurate copy of which has been heretofore delivered prior to Parent)the Effective Time, on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent White shall not be obligated to pay aggregate annual premiums in excess of 200150% of the amount per annum Green paid by the Company in its last full fiscal year (which premiums are hereby represented year, and warranted by the Company to be $301,000), it being understood and agreed provided further that Parent White shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. (d) The provisions of this Section 5.05 5.8 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause Each of Company and TWTC agrees that, to the Surviving Corporation to assume the obligations with respect to fullest extent permitted under applicable law, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time Closing Date now existing in favor of the current or former directors directors, officers, employees or officers of the fiduciaries under benefit plans currently indemnified by Company and its subsidiaries (“Company Indemnified Parties”), as provided in the Company Certificateits respective certificate or articles of incorporation, the Company By-by laws (or any indemnification agreement between such directors comparable organizational documents) or officers and the Company (in each caseother agreements providing indemnification, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In Company may, prior to the event that the Surviving Corporation Closing Date, purchase a six-year “tail” prepaid policy on terms and conditions providing substantially equivalent benefits to Company Indemnified Parties, or any of its successors or assigns (i) consolidates with or merges into any other person entitled to the benefit of Sections 6.8(a) and is not (b), as applicable, as the continuing or surviving corporation or entity of existing directors’ and officers’ liability (and fiduciary) insurance maintained by Company, covering without limitation the transactions contemplated hereby. If such consolidation or merger or (ii) transfers or conveys all or substantially all of “tail” prepaid policy has been obtained by Company prior to the Closing Date, the Surviving Company shall maintain such policies in full force and effect, for its properties and other assets to any person, thenfull term, and in each such case, Parent continue to honor its obligations thereunder and no other party shall cause proper provision have any further obligation to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05purchase or pay for insurance hereunder. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' The obligations of Company and officers' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation TWTC under this Section 5.05(c), neither 6.8 shall not be terminated or modified by such parties in a manner so as to adversely affect any Company Indemnified Party without the Company nor Parent shall be obligated to pay aggregate annual premiums in excess of 200% consent of the amount paid by the affected Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000), it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. (d) Indemnified Party. The provisions of this Section 5.05 6.8 are (i) are intended to be for the benefit of, and will be enforceable by, each indemnified partyIndemnified Party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective articles of incorporation or bylaws (or comparable organizational documents) and any indemnification agreements of the Company CertificateCompany, the Company By-laws or any indemnification agreement between such directors or officers and the Company (in each caseexistence of which does not constitute a breach of this Agreement, as in effect on the date hereof)shall be assumed by Parent, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation Parent or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 other assets to any personPerson, then, and in each such case, Parent shall cause proper provision to will be made so that the successors and assigns of the Surviving Corporation shall expressly Parent assume the obligations set forth in this Section 5.057.8. (c) For six five years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect of covering acts or omissions occurring at or prior to the Effective Time, covering each person Time with respect to those Persons who are currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that in no event shall Parent may (i) substitute therefor policies be required to expend in any one year an amount in excess of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that 150% of the annual premiums currently paid by the Company obtain for such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date)insurance; provided and provided, further, howeverthat if the annual premiums of such insurance coverage exceed such amount, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay aggregate annual premiums in excess of 200% of obtain a policy with the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000), it being understood and agreed that Parent shall nevertheless be obligated to provide greatest coverage available for a cost not exceeding such coverage as may be obtained for such 200% amount. (d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent For a period of six years from and after the Closing Date, the Company shall cause indemnify, defend and hold harmless, to the Surviving Corporation fullest extent permitted under applicable Law, the individuals who on or prior to assume the obligations Closing Date were directors or officers of the Company (collectively, the “Indemnitees”) with respect to all acts or omissions by them in their capacities as such or taken at the request of the Company at any time prior to the Closing Date other than with respect to fraud, willful misconduct or gross negligence. Purchasers agree that all rights of the Indemnitees to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing Closing Date as provided in favor the respective certificate of the current incorporation or former directors by-laws or officers comparable organizational documents of the Company as provided now in effect, and any indemnification agreements or arrangements of the Company Certificate, the Company By-laws or any indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger Closing Date and shall for a period of six years from and after the Closing Date continue in full force and effect in accordance with their terms. For a period of six years from and after the Closing Date, such rights shall not be amended, or otherwise modified in any manner that would materially adversely affect the rights of the Indemnitees, unless such modification is required by Law. In addition, the Company shall pay any expenses of any Indemnitee under this Section 8.3, as incurred to the fullest extent permitted under applicable Law. (b) In Any Indemnitee wishing to claim indemnification under this Section 8.3, upon learning of any such claim, action, suit, proceeding or investigation, shall notify Purchasers, but the event failure so to notify shall not relieve a party from any Liability that it may have under this Section 8.3, except to the Surviving Corporation or any of its successors or assigns extent such failure materially prejudices such party. Indemnitee shall have the right (i) consolidates with or merges into any other person and is but not the continuing obligation) to control the defense of, including the investigation of, any litigation, claim or surviving corporation or entity of such consolidation or merger or proceeding (iieach, a “Claim”) transfers or conveys all or substantially all of its properties and other assets relating to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in acts or omissions covered under this Section 5.058.3 with counsel selected by Indemnitee. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect Each of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (and the Indemnitee shall cooperate, and cause their respective Affiliates to cooperate, in the defense of any Claim and shall provide access to properties and individuals as reasonably requested and furnish or cause to be effective as of the Effective Date); provided furtherfurnished records, howeverinformation and testimony, that in satisfying its obligation under this Section 5.05(c)and attend such conferences, neither the Company nor Parent shall be obligated to pay aggregate annual premiums in excess of 200% of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000)discovery proceedings, it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage hearings, trials or appeals, as may be obtained for such 200% amountreasonably requested in connection therewith. (d) The provisions of this Section 5.05 8.3: (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified partyIndemnitee, his or her heirs and his or her representatives representatives; and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract Contract or otherwise. (e) The obligations of the Company under this Section 8.3 shall not be terminated or modified in such a manner as to materially adversely affect any Indemnitee to whom this Section 8.3 applies without the consent of the affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 8.3 applies shall be third party beneficiaries of this Section 8.3).

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or employees or officers of the Company as provided in the Company CertificateCertificate of Incorporation, the Company By-laws Bylaws or any indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof)) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05. (c) For six years after the Effective Time, Parent shall cause the Company to maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current officers', directors' and officersemployees' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person Person currently covered by the Company's directorsofficers' and officersdirectors' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, provided that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date)officers; provided furtherprovided, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor 5.7(b) Parent shall not be obligated to pay aggregate annual premiums in excess of 200% of the amount per annum paid by the Company in its last full fiscal year (which premiums are hereby represented year; and warranted by the Company provided further that if Parent is not able to be $301,000)obtain such coverage for such 200% amount, it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. (dc) The provisions of this Section 5.05 5.7 are (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to agrees that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company as provided in the Company CertificateAmended and Restated Articles of Incorporation, the Company By-laws Bylaws or any indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof)) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person Person and is not 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 other assets to any personPerson, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.055.07. In the event the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions, Parent will either guarantee the indemnification obligations referred to in Section 5.07(a) or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such indemnification obligations will not be diminished in any material respect. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directorsofficers' and officersdirectors' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person Person currently covered by the Company's directorsofficers' and officersdirectors' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, provided that Parent may (i) -------- substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date)officers; provided furtherprovided, however, -------- ------- that in satisfying its obligation under this Section 5.05(c), neither the Company nor 5.07(c) Parent shall not be obligated to pay aggregate annual premiums in excess of 200% of the amount per annum paid by the Company in its last full fiscal year (which premiums are hereby represented year; and warranted by the Company to be $301,000), it being understood and agreed provided further that Parent shall -------- ------- nevertheless be obligated to provide such coverage as may be obtained for such 200% amount. (d) The provisions of this Section 5.05 5.07 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person Person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company as provided in the Company CertificateArticles, the Company By-laws or any indemnification agreement Contract between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05. In the event (A) the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions or (B) Parent takes any action to materially impair the financial ability of the Surviving Corporation to satisfy the obligations referred to in Section 5.05(a), Parent will either guarantee such obligations or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such obligations will not be diminished in any material respect. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage (including as coverage relates to deductibles and amount exclusions) and amounts no less favorable to such directors and officers or (ii) request ii)request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective DateTime); provided provided, further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay more than in the aggregate annual premiums the amount set forth in excess of 200% Section 5.05(c) of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company Disclosure Schedule to be $301,000), it being obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Parent shall nevertheless only be obligated to provide such coverage as may be obtained for such 200% aggregate amount. (d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract Contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to all All rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company and the Subsidiaries as provided in their respective certificates of incorporation or by- laws (or comparable organizational documents) and any indemnification agreements of the Company CertificateCompany, the Company By-laws or any indemnification agreement between such directors or officers and existence of which does not constitute a breach of this Agreement, shall be assumed by the Company (Surviving Corporation in each case, as in effect on the date hereof)Merger, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect (to the extent consistent with applicable law) in accordance with their terms. (b) For six years after the Effective Time, Parent shall cause the Surviving Corporation to honor its commitments and obligations pursuant to this Section 5.5. In the event that Parent or the Surviving Corporation or any of its their respective successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to will be made so that the successors and assigns of Parent or the Surviving Corporation shall expressly Corporation, as the case may be, assume the obligations set forth in this Section 5.055.5(b). (c) For six years after the Effective Time, Parent the Surviving Corporation shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directorsprovide officers' and officersdirectors' liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, including but not limited to the transactions contemplated by this Agreement, covering each person currently covered by the Company's directorsofficers' and officersdirectors' liability insurance policy, or who becomes covered by such policy (a complete and accurate copy of which has been heretofore delivered prior to Parent)the Effective Time, on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither 5.5 the Company nor Parent Surviving Corporation shall not be obligated to pay aggregate annual premiums in excess of 200175% of the amount paid by per annum the Company paid in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000), it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amountyear. (d) The provisions of this Section 5.05 5.5 are (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution foror, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to all rights to indemnification and exculpation from liabilities liabilities, including advancement of expenses, for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company as provided in the Company CertificateArticles, the Company By-laws or any indemnification agreement Contract between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05. In the event (A) the Surviving Corporation transfers any material portion of its assets, in a single transaction or in a series of transactions or (B) Parent takes any action to materially impair the financial ability of the Surviving Corporation to satisfy the obligations referred to in Section 5.05(a), Parent will either guarantee such obligations or take such other action to insure that the ability of the Surviving Corporation, legal and financial, to satisfy such obligations will not be diminished in any material respect. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's ’s existing insurance programs) in effect the Company's ’s current directors' ’ and officers' ’ liability insurance in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's ’s directors' ’ and officers' ’ liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount amounts no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage (including as coverage relates to deductibles and amount exclusions) and amounts no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective DateTime); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay more than in the aggregate annual premiums the amount set forth in excess of 200% Section 5.05(c) of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company Disclosure Schedule to be $301,000), it being obtain such coverage. It is understood and agreed that in the event such coverage cannot be obtained for such amount or less in the aggregate, Parent shall nevertheless only be obligated to provide such coverage as may be obtained for such 200% aggregate amount. (d) The provisions of this Section 5.05 (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract Contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Parent shall cause the Surviving Corporation to assume the obligations with respect to all All rights to indemnification and exculpation (including any rights related to the advancement of expenses) from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors or officers of the Company as provided in the Company Certificate, the Company By-laws or any indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof)of this Agreement) shall be assumed by the Surviving Corporation in the Merger, without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.055.07. (c) For a period of six years from and after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect of covering acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate correct copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereofof this Agreement; provided, however, that Parent may (i) substitute therefor policies of Parent or its subsidiaries containing terms with respect to coverage and amount no less favorable in any material respect to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date)officers; provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor 5.07(c) Parent shall not be obligated to pay aggregate annual premiums for insurance under this Section 5.07(c) in excess of 200150% of the amount of the aggregate premiums paid by the Company in its last full fiscal calendar year 2001 for such purpose (which calendar year 2001 aggregate premiums are hereby represented and warranted by the Company hereby represent and warrant to be $301,000222,000), ; it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200150% amount. Notwithstanding anything in this Section 5.07(c) to the contrary, Parent's obligation to provide directors' and officers' liability insurance coverage under this Section 5.07(c) shall cease immediately upon such time, if any, as Parent shall have assumed the obligations of the Surviving Corporation under Section 5.07(a), regardless of whether any such time occurs within six years from and after the Effective Time. (d) The provisions of this Section 5.05 5.07 (i) are intended to be for the benefit of, and will shall be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.

Indemnification, Exculpation and Insurance. (a) Each of Parent shall cause the Surviving Corporation to assume the obligations with respect to and Merger Sub agree that all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing as of the date of this Agreement in favor of the current or former directors or officers of the Company and its Subsidiaries as provided in their respective certificates of incorporation or by-laws (or similar organizational documents) and any indemnification agreements of the Company Certificate, set forth in Section 5.5(a) of the Company By-laws Disclosure Letter or any indemnification agreement between such directors or officers and disclosed in the Company (in each case, as in effect on the date hereof), without further action, as of Filed SEC Documents shall survive the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their termsterms from the Effective Time until the expiration of the applicable statute of limitations with respect to any claims against such directors or officers arising out of such acts or omissions. Parent shall ensure that the Surviving Corporation remains in a financial position to meet its commitments under this Section 5.5(a). (b) In For six years after the Effective Time, Parent shall cause to be maintained in effect the Company’s current directors’ and officers’ liability insurance covering each Person currently covered by the Company’s directors’ and officers’ liability insurance policy for acts or omissions occurring prior to the Effective Time on terms with respect to such coverage and amounts no less favorable in any material respect to such directors and officers than those of such policy as in effect on the date of this Agreement; provided that Parent may substitute therefor policies of a reputable insurance company the material terms of which, including coverage and amount, are no less favorable in any material respect to such directors and officers than the insurance coverage otherwise required under this Section 5.5(b); provided, however, that in no event that shall Parent be required to pay aggregate annual premiums for insurance under this Section 5.5(b) in excess of $6,438,750 (the Maximum Premium), which the Company represents and warrants is equal to 250% of the annual premiums paid as of the date hereof by the Company for such insurance; provided that, if such premium exceeds the Maximum Premium, Parent shall nevertheless be obligated to provide the most advantageous coverage as may be obtained for such Maximum Premium. (c) If Parent or the Surviving Corporation or any of its their successors or assigns (i) consolidates with or merges into any other person Person and is shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and other assets to any personPerson, then, and in each either such case, Parent shall cause proper provision to shall be made so that the successors and assigns of Parent or the Surviving Corporation Corporation, as the case may be, shall expressly assume the obligations of Parent or the Surviving Corporation, as applicable, set forth in this Section 5.05. (c) For six years after the Effective Time, Parent shall maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' and officers' liability insurance in respect 5.5. The rights of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Company's directors' and officers' liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), on terms with respect to such coverage and amount no less favorable than those of such policy in effect on the date hereof; provided, however, that Parent may (i) substitute therefor policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent indemnified party hereunder shall be obligated in addition to pay aggregate annual premiums in excess of 200% of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000)any other rights such indemnified party may have under any applicable law, it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amountagreement or otherwise. (d) The provisions of this Section 5.05 5.5 shall survive the consummation of the Merger and (iif the Effective Time occurs) are expressly intended to be for benefit each of the benefit ofindemnified parties, and will be enforceable by, each indemnified party, his or her their heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwiserepresentatives.

Indemnification, Exculpation and Insurance. (a) Parent shall cause Constellation agrees that, to the Surviving Corporation to assume the obligations with respect to fullest extent permitted under applicable Law, all rights to indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing in favor of the current or former directors directors, officers, employees or officers of the Company fiduciaries under benefit plans currently indemnified by FPL Group and its subsidiaries or by Constellation and its subsidiaries, as provided in the Company Certificatetheir respective articles or certificates of incorporation, the Company Byby-laws (or any comparable organizational documents) or other agreements providing indemnification agreement between such directors or officers and the Company (in each case, as in effect on the date hereof), without further action, as of the Effective Time and such obligations shall survive the Merger and shall continue in full force and effect in accordance with their terms. In addition, from and after the Effective Time, directors, officers, employees and fiduciaries under benefit plans currently indemnified by FPL Group or its subsidiaries or by Constellation and its subsidiaries who become or remain directors, officers, employees or fiduciaries under benefit plans of Constellation will be entitled to the indemnity rights and protections afforded to directors, officers, employees and fiduciaries under benefit plans of Constellation. (b) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other person and is not 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 other assets to any person, then, and in each such case, Parent shall cause proper provision to be made so that the successors and assigns of the Surviving Corporation shall expressly assume the obligations set forth in this Section 5.05. (c) For six years after the Effective Time, Parent Constellation shall, or shall cause the Surviving Corporations to, maintain (directly or indirectly through the Company's existing insurance programs) in effect the Company's current directors' directors and officers' officers liability (and fiduciary) insurance in respect of policies currently maintained by Constellation and FPL Group covering acts or omissions occurring at or prior to the Effective Time, covering each person Time with respect to those persons who are currently covered by Constellation’s or FPL Group’s, as the Company's directors' case may be, directors and officers' officers liability insurance policy (a complete and accurate copy of which has been heretofore delivered to Parent), policies on terms with respect to such coverage and amount in amounts no less favorable than those of such set forth in the relevant policy in effect on the date hereof; providedof this Agreement. If such insurance coverage cannot be maintained, howeverConstellation shall, that Parent may (i) substitute therefor or shall cause the Surviving Corporation to, maintain the most advantageous policies of Parent containing terms with respect to coverage and amount no less favorable to such directors and officers or (ii) request that the Company obtain such extended reporting period coverage under its existing insurance programs (to be effective as of the Effective Date); provided further, however, that in satisfying its obligation under this Section 5.05(c), neither the Company nor Parent shall be obligated to pay aggregate annual premiums in excess of 200% of the amount paid by the Company in its last full fiscal year (which premiums are hereby represented and warranted by the Company to be $301,000), it being understood and agreed that Parent shall nevertheless be obligated to provide such coverage as may be obtained for such 200% amountotherwise obtainable. (dc) The provisions of this Section 5.05 5.09(a) (i) are intended to be for the benefit of, and will be enforceable by, each indemnified party, his or her heirs and his or her representatives and (ii) are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have by contract or otherwise.