Common use of Indemnification; Exculpation Clause in Contracts

Indemnification; Exculpation. (a) All rights to indemnification or exculpation (including advancement of expenses) existing as of the date of this Agreement in favor of the current or former directors, officers and employees of the Company and its Subsidiaries as provided in the Organizational Documents of the Company and its Subsidiaries shall continue in full force and effect for a period of six (6) years after the Closing; provided, however, that if any claims are asserted or made within such period, all rights to indemnification (and to advancement of expenses) thereunder shall continue until disposition of any such claims. Parent shall not, and shall cause the Surviving Corporation not to, take any action to diminish or impair the indemnification and exculpation provisions existing in the Organizational Documents of the Surviving Corporation as of immediately prior to the Effective Time. The foregoing provision is a contract right in favor of the current or former directors, officers and employees of the Company and its Subsidiaries and shall not be adversely effected by any modification to the Organizational Documents of the Company and its Subsidiaries after the date hereof. (b) Prior to the Closing, the Company shall purchase, and after the Closing Parent shall, or shall cause the Surviving Corporation to, maintain, an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage for the directors and officers of the Company and its Subsidiaries in a form reasonably satisfactory to Parent that shall provide such directors and officers with coverage for six (6) years following the Closing of not less than the existing coverage and have other terms not materially less favorable to the insured than the directors’ and officers’ insurance currently maintained by the Company. (c) The provisions of this Section 6.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Person entitled to be indemnification pursuant to this Section 6.7, and each such person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons shall be third party beneficiaries of this Section 6.7 and (ii) shall not be subject to amendment by the parties to this Agreement. The indemnification obligations provided under this Section 6.7 are primary and the indemnified Persons under this Section 6.7 shall not be obligated to pursue claims that exist under any other agreement or document which may provide such Person with any rights of indemnification or exculpation. (d) Parent, Merger Sub and the Surviving Corporation hereby acknowledge that the Indemnified Persons under this Section 6.7 may have certain rights to indemnification, advancement of expenses and/or insurance provided by current shareholders, members, or other Affiliates of the Company or its shareholders (“Indemnitee Affiliates”) separate from the indemnification obligations of Parent, Merger Sub and the Surviving Corporation hereunder. Parent, Merger Sub and the Surviving Corporation hereby agree (i) that the Surviving Corporation is the indemnitor of first resort (i.e., its obligations to the indemnified Persons under this Section 6.7 are primary and any obligation of any Indemnitee Affiliate to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the indemnified Persons under this Section 6.7 are secondary), and (ii) that Parent, Merger Sub and the Surviving Corporation irrevocably waive, relinquish and release the Indemnitee Affiliates from any and all claims against the Indemnitee Affiliates for contribution, subrogation or any other recovery of any kind in respect thereof.

Indemnification; Exculpation. (a) All rights to indemnification or exculpation (including advancement of expenses) existing as of the date of this Agreement in favor of the current or former directors, officers and employees of the Company Acquired Entities and its Subsidiaries Center Entities as provided in the Organizational Documents of the Company Acquired Entities and its Subsidiaries Center Entities shall continue in full force and effect for a period of six (6) years after the Closing; provided, however, that if any claims are asserted or made within such period, all rights to indemnification (and to advancement of expenses) thereunder shall continue until disposition of any such claims. Parent shall not, and shall cause the Surviving Corporation not to, take any action to diminish or impair the indemnification and exculpation provisions existing in the Organizational Documents of the Surviving Corporation as of immediately prior to the Effective Time. The foregoing provision is a contract right in favor of the current or former directors, officers and employees of the Company Acquired Entities and its Subsidiaries Center Entities and shall not be adversely effected by any modification to the Organizational Documents of the Company Acquired Entities and its Subsidiaries Center Entities after the date hereof. (b) Prior to the Closing, the Company shall purchase, and after the Closing Parent shallshall maintain, or shall cause the Surviving Corporation to, maintainto be maintained, an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage for the directors and officers of the Company Acquired Entities and its Subsidiaries Center Entities in a form reasonably satisfactory to Parent that shall provide such directors and officers with coverage for six (6) years following the Closing of not less than the existing coverage and have other terms not materially less favorable to the insured than the directors’ and officers’ insurance currently maintained by the Company. (c) The provisions of this Section 6.7 6.6 are (i) intended to be for the benefit of, and shall be enforceable by, each Person entitled to be indemnification pursuant to this Section 6.76.6, and each such person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons shall be third party beneficiaries of this Section 6.7 6.6 and (ii) shall not be subject to amendment by the parties to this Agreement. The indemnification obligations provided under this Section 6.7 6.6 are primary and the indemnified Persons under this Section 6.7 6.6 shall not be obligated to pursue claims that exist under any other agreement or document which may provide such Person with any rights of indemnification or exculpation. (d) Parent, Merger Sub Parent and the Surviving Corporation Holdings hereby acknowledge that the Indemnified Persons under this Section 6.7 6.6 may have certain rights to indemnification, advancement of expenses and/or insurance provided by the Company and/or current shareholders, members, or other Affiliates of the Company or its shareholders (“Indemnitee Affiliates”) separate from the indemnification obligations of ParentParent and Holdings. Parent and Holdings hereby agree, Merger Sub and except as set forth in the Surviving Corporation hereunder. Parent, Merger Sub and the Surviving Corporation hereby agree proviso below: (i) that the Surviving Corporation Holdings is the indemnitor of first resort (i.e., its obligations to the indemnified Persons under this Section 6.7 6.6 are primary and any obligation of any Indemnitee Affiliate to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the indemnified Persons under this Section 6.7 6.6 are secondary), and (ii) that Parent, Merger Sub Parent and the Surviving Corporation Holdings irrevocably waive, relinquish and release the Indemnitee Affiliates from any and all claims against the Indemnitee Affiliates for contribution, subrogation or any other recovery of any kind in respect thereof; provided, that the insurance described in Section 6.6(b) above shall be the first source of payment before Parent, Holdings and the Company with respect to claims and expenses covered by such policy.

Indemnification; Exculpation. (a) All rights to indemnification or indemnification, expense advancement and exculpation (including advancement of expenses) existing as of the date of this Agreement in favor of the current any present or former directors, officers and employees director or officer of the Company and or any of its Subsidiaries subsidiaries (each, an “Indemnified Person”), as provided in the Organizational Documents Articles of Incorporation, Bylaws or similar organizational documents of the Company and or any of its Subsidiaries shall continue subsidiaries or by law as in full force and effect on the date hereof, will survive the Merger for a period of six four (64) years after the Closing; providedEffective Time (or, however, that if in the event any claims are relevant claim is asserted or made within such four-year period, all rights to indemnification (and to advancement of expenses) thereunder shall continue until final disposition of any such claims. Parent shall notclaim) with respect to matters occurring at or prior to the Effective Time (including actions with respect to the consummation of the transactions contemplated by this Agreement), and shall cause no action taken by the Surviving Corporation not to, take or any action other person during such period will be deemed to diminish or impair the indemnification and exculpation provisions existing in the Organizational Documents obligations of the Surviving Corporation as of immediately prior to set forth in this Section 5.8(a). Parent hereby guarantees the Effective Time. The foregoing provision is a contract right in favor payment and performance of the current Surviving Corporation’s obligations set forth in this Section 5.8(a). Each Indemnified Person is intended to be a third party beneficiary of this Section 5.8(a) and may specifically enforce its terms. This Section 5.8(a) shall not limit or former directors, officers and employees of otherwise adversely affect any rights any Indemnified Person may have under any separate agreement with the Company and its Subsidiaries and shall not be adversely effected by any modification to or under the Organizational Documents Company’s Articles of the Company and its Subsidiaries after the date hereofIncorporation or Bylaws. (b) Prior to the Closing, the Company shall purchase, and after the Closing The obligations of Parent shall, or shall cause the Surviving Corporation to, maintain, an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage for the directors and officers of the Company and its Subsidiaries in a form reasonably satisfactory to Parent that shall provide such directors and officers with coverage for six (6) years following the Closing of not less than the existing coverage and have other terms not materially less favorable to the insured than the directors’ and officers’ insurance currently maintained by the Company. (c) The provisions of this Section 6.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Person entitled to be indemnification pursuant to this Section 6.7, and each such person’s heirs, legatees, representatives, successors and assigns, it being expressly agreed that such Persons shall be third party beneficiaries of this Section 6.7 and (ii) shall not be subject to amendment by the parties to this Agreement. The indemnification obligations provided under this Section 6.7 are primary and the indemnified Persons under this Section 6.7 shall not be obligated to pursue claims that exist under any other agreement or document which may provide such Person with any rights of indemnification or exculpation. (d) Parent, Merger Sub and the Surviving Corporation hereby acknowledge that the Indemnified Persons under contained in this Section 6.7 may have certain rights to indemnification, advancement 5.8 shall be binding on the respective successors and assigns of expenses and/or insurance provided by current shareholders, members, or other Affiliates of the Company or its shareholders (“Indemnitee Affiliates”) separate from the indemnification obligations of Parent, Merger Sub Parent and the Surviving Corporation hereunderCorporation. If Parent, Merger Sub and the Surviving Corporation hereby agree or any of their successors or assigns (i) that consolidates with or merges into any other person and shall not be the Surviving Corporation is the indemnitor continuing or surviving corporation or organization of first resort (i.e., its obligations to the indemnified Persons under this Section 6.7 are primary and any obligation of any Indemnitee Affiliate to advance expenses such consolidation or to provide indemnification for the same expenses merger or liabilities incurred by the indemnified Persons under this Section 6.7 are secondary), and (ii) transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision shall be made so that Parent, Merger Sub the successors and assigns of Parent or the Surviving Corporation irrevocably waiveCorporation, relinquish and release as the Indemnitee Affiliates from any and all claims against case may be, shall assume the Indemnitee Affiliates for contribution, subrogation or any other recovery of any kind obligations set forth in respect thereofthis Section 5.8.

Indemnification; Exculpation. (a) All The Parties hereby agree, and Purchasers will use their best efforts to ensure, that all rights to indemnification or indemnification, exculpation and insurance (including the advancement of expenses) with respect to Liabilities for acts or omissions occurring at or prior to the Closing (including with respect to the Transaction) existing as of the date of this Agreement hereof in favor of the current or former directors, managers, officers and employees of the Company and and/or any of its Subsidiaries (including the Public Company) that prior to the Closing were elected, appointed or otherwise employed by or serving on behalf of DDR or Sellers (collectively, the “Covered Persons”), as provided in the Organizational Documents articles of association, bylaws, other organizational documents or any indemnification agreements of the Company and or any of its Subsidiaries shall (including the Public Company) and pursuant to applicable Law, will survive the Transaction and will continue in full force and effect without amendment, modification or repeal in accordance with their terms until the expiry of the applicable statute of limitations (including any extensions thereof) for a period of six (6) years after the Closingsuch Liabilities; provided, howeverexcept, that if any claims are asserted or made within such period, all rights to indemnification indemnification, exculpation and insurance (and to advancement of expenses) thereunder shall continue hereunder in respect of any such claims will continue, without diminution, until disposition of any and all such claims. Parent shall not, and shall cause the Surviving Corporation not to, take any action to diminish or impair the indemnification and exculpation provisions existing in the Organizational Documents of the Surviving Corporation as of immediately prior to the Effective Time. The foregoing provision is a contract right in favor of the current or former directors, officers and employees of the Company and its Subsidiaries and shall not be adversely effected by any modification to the Organizational Documents of the Company and its Subsidiaries after the date hereof. (b) Prior Notwithstanding anything to the Closingcontrary herein, if any Covered Person is entitled to be reimbursed or indemnified by any Person (including any Seller or any of their respective Affiliates) other than Purchasers, the Company shall purchaseor any of its Subsidiaries (including the Public Company), and after the Closing Parent shallsuch Covered Person will not be required to recover from or be indemnified by, or shall cause the Surviving Corporation toto seek such recovery or indemnification from, maintain, an extended reporting period endorsement under the Company’s existing directors’ and officers’ liability insurance coverage for the directors and officers of the Company and its Subsidiaries any such other Person prior to or as a condition to being indemnified as described in a form reasonably satisfactory to Parent that shall provide such directors and officers with coverage for six (6) years following the Closing of not less than the existing coverage and have other terms not materially less favorable to the insured than the directors’ and officers’ insurance currently maintained by the Companythis Section 6.3. (c) The provisions of this Section 6.7 6.3 are (i) intended to be for the benefit of, and shall be enforceable by, each Covered Person entitled to be indemnification indemnified by Purchasers pursuant to this Section 6.76.3, his or her heirs and each such person’s heirs, legatees, his or her representatives, successors and assigns, it being expressly agreed that such Persons shall will be third party Third Party beneficiaries of this Section 6.7 6.3. If any Purchaser or its successors or assigns (i) will consolidate or amalgamate with or merge into any other Person and will not be the continuing or surviving corporation or entity of such consolidation, amalgamation or merger or (ii) shall not will transfer all or substantially all of its properties and assets to any Person, then, and in each such case, proper provisions will be subject to amendment by made so that the parties to this Agreement. The indemnification successors and assigns of such Purchaser will assume all of the obligations provided under of such Purchaser set forth in this Section 6.7 are primary and the indemnified Persons under this Section 6.7 shall not be obligated to pursue claims that exist under any other agreement or document which may provide such Person with any rights of indemnification or exculpation6.3. (d) Parent, Merger Sub and the Surviving Corporation hereby acknowledge that the Indemnified Persons under this Section 6.7 may have certain rights to indemnification, advancement of expenses and/or insurance provided by current shareholders, members, or other Affiliates of the Company or its shareholders (“Indemnitee Affiliates”) separate from the indemnification obligations of Parent, Merger Sub and the Surviving Corporation hereunder. Parent, Merger Sub and the Surviving Corporation hereby agree (i) that the Surviving Corporation is the indemnitor of first resort (i.e., its obligations to the indemnified Persons under this Section 6.7 are primary and any obligation of any Indemnitee Affiliate to advance expenses or to provide indemnification for the same expenses or liabilities incurred by the indemnified Persons under this Section 6.7 are secondary), and (ii) that Parent, Merger Sub and the Surviving Corporation irrevocably waive, relinquish and release the Indemnitee Affiliates from any and all claims against the Indemnitee Affiliates for contribution, subrogation or any other recovery of any kind in respect thereof.