Common use of Indemnification for Prior Acts Clause in Contracts

Indemnification for Prior Acts. For a period of no less than six years after the Effective Time, to the fullest extent permitted by applicable Law, Parent shall, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, including, but not limited to the member of the Special Committee, and officers of the Company and its subsidiaries (collectively, the “Indemnified Parties”) against any costs, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was a director, officer, employee or fiduciary of the Company or any of its subsidiaries or is or was serving at the request of, or to represent the interest of, the Company or any of its Subsidiaries as a director, officer, partner, member, trustee, fiduciary, employee or agent of any other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association whether asserted or claimed prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties, to the fullest extent permitted by applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits Parent or the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted Parent or the Surviving Corporation to provide prior to such amendment), (ii) without limitation to clause (i), to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) organizational documents for a period of not less than six years after the Effective Time, provisions regarding elimination of liability of directors, and indemnification of and advancement of expenses to directors and officers of the Company, no less favorable than those contained in the Company’s organizational documents as of the date hereof and (iii) not settle, compromise or consent to the entry of any judgment in any proceeding or threatened litigation, action, suit, arbitration, investigation or similar proceeding (public or private) (“Action”), in each case, by or before a Governmental Authority (and in which indemnification could be sought by an Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed). In the event of any such claim, action, suit, proceeding or investigation, (A) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, (B) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigation, and (C) the Surviving Corporation shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Party, promptly after statements therefor are received, whether or not the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigation. The Surviving Corporation will maintain in effect for not less than six years after Effective Time, with respect to occurrences prior to the Effective Time, the Company's policies of directors’ and officers' liability insurance which are in effect on the date of this Agreement and are listed on Schedule 10.1 (notwithstanding any provisions of those policies that they will terminate as a result of a merger), or provide substantially equivalent coverage and amounts containing terms no less favorable to such directors or officers, and from insurance carriers with at least comparable claims paying ability ratings, to the extent that insurance is available at an annual cost not exceeding 350% of the annual cost of the policies of directors and officers liability insurance that are in effect at the date of this Agreement (and, to the extent that insurance is not available at an annual cost not exceeding 350% of the annual cost of the policies that are in effect at the date of this Agreement, the Surviving Corporation will maintain in effect the maximum coverage that is available for that amount). Notwithstanding anything in this Agreement to the contrary, prior to the Effective Time, the Company shall purchase a “tail” insurance policy with a fresh, unimpaired aggregate limit of liability (which policy by its express terms shall survive the Merger) of at least the same coverage with a fresh, unimpaired aggregate limit of liability, and containing terms and conditions that are no less favorable to the directors and officers of the Company as the Company’s existing policy or policies, and from insurance carriers with at least comparable claims paying ability ratings, for the benefit of the current and former officers and directors of the Company with a claims period of six years from the Effective Time with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred at or prior to the Effective Time. If the Surviving Corporation is acquired during the period of six years after the date of this Agreement, the Surviving Corporation will require in any agreement relating to its being acquired that the acquirer shall maintain in effect the insurance required by this Section.

Indemnification for Prior Acts. For a period of no less than six years after the Effective Time, to the fullest extent permitted by applicable Law, Parent shall(a) The Surviving Corporation will honor, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, including, but will not limited to the member of the Special Committee, and officers of the Company and its subsidiaries (collectively, the “Indemnified Parties”) against any costs, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims damages amend or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was a director, officer, employee or fiduciary of the Company or any of its subsidiaries or is or was serving at the request of, or to represent the interest of, the Company or any of its Subsidiaries as a director, officer, partner, member, trustee, fiduciary, employee or agent of any other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association whether asserted or claimed prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties, to the fullest extent permitted by applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits Parent or the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted Parent or the Surviving Corporation to provide prior to such amendment), (ii) without limitation to clause (i), to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) organizational documents modify for a period of not less than six years after the Effective Timedate of this Agreement, provisions regarding elimination any and all obligations of liability of the Company and its subsidiaries to indemnify present and former directors, and indemnification of and advancement of expenses to directors and officers or employees of the Company, no less favorable than those contained in the Company’s organizational documents as of the date hereof and Company or its subsidiaries (iiieach an "Indemnified Party") not settle, compromise with respect to matters which occur on or consent prior to the entry of any judgment in any proceeding or threatened litigation, action, suit, arbitration, investigation or similar proceeding (public or private) (“Action”), in each case, by or before a Governmental Authority (and in which indemnification could be sought by an Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed). In the event of any such claim, action, suit, proceeding or investigation, (A) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, (Bwhether provided in the certificate of incorporation or by-laws of the Company or any of its subsidiaries, in any of the agreements listed on Exhibit 9.1-A(1) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not under the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigation, and (C) the Surviving Corporation shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Party, promptly after statements therefor are received, whether or not the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigationDGCL. The Surviving Corporation will will, maintain in effect for not less than six years after Effective Time, Time with respect to occurrences prior to the Effective Time, Time the Company's policies of directors’ directors and officers' liability insurance which are in effect on the date of this Agreement and are listed on Schedule 10.1 Exhibit 9.1-A(2) (notwithstanding any provisions of those policies that they will terminate as a result of a merger), or provide substantially equivalent coverage and amounts containing terms no less favorable to such directors or officers, and from insurance carriers with at least comparable claims paying ability ratings, Merger) to the extent that such insurance (or substantially similar insurance) is available at an annual cost not exceeding 350% of available. (b) Without limiting the annual cost of foregoing, in the policies of directors event any indemnified claim ("Claim") is brought against any Indemnified Party after the Effective Time, (i) the Indemnified Parties may retain the Company's regularly engaged independent legal counsel, or other independent legal counsel satisfactory to them and officers liability insurance that are in effect at the date of this Agreement (and, to the extent that insurance is not available at an annual cost not exceeding 350% Surviving Corporation, (ii) the Surviving Corporation shall pay all reasonable fees and expenses of counsel for the annual cost of the policies that Indemnified Parties as described below promptly as statements therefor are in effect at the date of this Agreement, received and (iii) the Surviving Corporation will maintain use its best efforts to assist in effect the maximum coverage vigorous defense of any such matter, provided that is available for that amount). Notwithstanding anything in this Agreement to the contrary, prior to the Effective Time, the Company shall purchase a “tail” insurance policy with a fresh, unimpaired aggregate limit of liability (which policy by its express terms shall survive the Merger) of at least the same coverage with a fresh, unimpaired aggregate limit of liability, and containing terms and conditions that are no less favorable to the directors and officers of the Company as the Company’s existing policy or policies, and from insurance carriers with at least comparable claims paying ability ratings, for the benefit of the current and former officers and directors of the Company with a claims period of six years from the Effective Time with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred at or prior to the Effective Time. If the Surviving Corporation is acquired during shall not be liable for any settlement of any Claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification with regard to a Claim, upon learning of the period of six years after the date of this AgreementClaim, shall notify the Surviving Corporation will require in any agreement relating of the Claim (although the failure so to its being acquired that notify the acquirer shall maintain in effect the insurance required by this Section.Surviving Corporation

Indemnification for Prior Acts. For a period of no less than six years after the Effective Time, to the fullest extent permitted by applicable Law, Parent shall(a) The Surviving Corporation will honor, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, including, but will not limited to the member of the Special Committee, and officers of the Company and its subsidiaries (collectively, the “Indemnified Parties”) against any costs, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims damages amend or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was a director, officer, employee or fiduciary of the Company or any of its subsidiaries or is or was serving at the request of, or to represent the interest of, the Company or any of its Subsidiaries as a director, officer, partner, member, trustee, fiduciary, employee or agent of any other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association whether asserted or claimed prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties, to the fullest extent permitted by applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits Parent or the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted Parent or the Surviving Corporation to provide prior to such amendment), (ii) without limitation to clause (i), to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) organizational documents modify for a period of not less than six years after the Effective Timedate of this Agreement, provisions regarding elimination 34 any and all obligations of liability of the Company and its subsidiaries to indemnify present and former directors, and indemnification of and advancement of expenses to directors and officers or employees of the Company, no less favorable than those contained in the Company’s organizational documents as of the date hereof and Company or its subsidiaries (iiieach an "Indemnified Party") not settle, compromise with respect to matters which occur on or consent prior to the entry of any judgment in any proceeding or threatened litigation, action, suit, arbitration, investigation or similar proceeding (public or private) (“Action”), in each case, by or before a Governmental Authority (and in which indemnification could be sought by an Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed). In the event of any such claim, action, suit, proceeding or investigation, (A) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, (Bwhether provided in the certificate of incorporation or by-laws of the Company or any of its subsidiaries, in any of the agreements listed on Exhibit 9.1-A(1) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not under the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigation, and (C) the Surviving Corporation shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Party, promptly after statements therefor are received, whether or not the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigationDGCL. The Surviving Corporation will maintain in effect for not less than six years after the Effective Time, Time with respect to occurrences or omissions prior to the Effective Time, the Company's policies of directors’ Time directors and officers' liability insurance (which are in effect on need not insure the date of this Agreement Company against risk other than the Company's obligation to insure officers and are listed on Schedule 10.1 (notwithstanding any provisions of directors) with coverage limits comparable to those policies that they will terminate as a result of a merger), or provide substantially equivalent coverage and amounts containing terms no less favorable to such directors or officers, and from insurance carriers with at least comparable claims paying ability ratings, to the extent that insurance is available at an annual cost not exceeding 350% of the annual cost of the policies of directors and officers liability insurance that are in effect at the date of this Agreement (and, the "Current Policies") to the extent that insurance can be purchased for premiums totaling not more than $100,000 plus any premiums paid for the Current Policies which are refunded because the Current Policies are terminated before their stated expiration dates (if that occurs), or to the extent that coverage cannot be purchased for that amount, reduce the coverage or increase the deductible amount in order to obtain the maximum coverage which can be purchased for that amount. (b) Without limiting the foregoing, in the event any indemnified claim ("Claim") is not available at an annual cost not exceeding 350% brought against any Indemnified Party after the Effective Time, (i) the Indemnified Parties may retain the Company's regularly engaged independent legal counsel, or other independent legal counsel satisfactory to them and to the Surviving Corporation, (ii) the Surviving Corporation shall pay all reasonable fees and expenses of counsel for the annual cost of the policies that Indemnified Parties as described below promptly as statements therefor are in effect at the date of this Agreement, received and (iii) the Surviving Corporation will maintain use its best efforts to assist in effect the maximum coverage vigorous defense of any such matter, provided that is available for that amount). Notwithstanding anything in this Agreement to the contrary, prior to the Effective Time, the Company shall purchase a “tail” insurance policy with a fresh, unimpaired aggregate limit of liability (which policy by its express terms shall survive the Merger) of at least the same coverage with a fresh, unimpaired aggregate limit of liability, and containing terms and conditions that are no less favorable to the directors and officers of the Company as the Company’s existing policy or policies, and from insurance carriers with at least comparable claims paying ability ratings, for the benefit of the current and former officers and directors of the Company with a claims period of six years from the Effective Time with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred at or prior to the Effective Time. If the Surviving Corporation is acquired during shall not be liable for any settlement of any Claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification with regard to a Claim, upon learning of the period of six years after the date of this AgreementClaim, the Surviving Corporation will require in any agreement relating to its being acquired that the acquirer shall maintain in effect the insurance required by this Section.notify the

Indemnification for Prior Acts. For a period of no less than six years after the Effective Time, to the fullest extent permitted by applicable Law, Parent shall(a) The Surviving Corporation will honor, and shall cause the Surviving Corporation to, (i) indemnify, defend and hold harmless, all past and present directors, including, but will not limited to the member of the Special Committee, and officers of the Company and its subsidiaries (collectively, the “Indemnified Parties”) against any costs, expenses (including attorneys’ fees and expenses and disbursements), judgments, fines, losses, claims damages amend or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to the fact that the Indemnified Party is or was a director, officer, employee or fiduciary of the Company or any of its subsidiaries or is or was serving at the request of, or to represent the interest of, the Company or any of its Subsidiaries as a director, officer, partner, member, trustee, fiduciary, employee or agent of any other corporation, partnership, joint venture, limited liability company, trust, employee benefit plan or other enterprise, including any charitable or not-for profit public service organization or trade association whether asserted or claimed prior to, at or after the Effective Time (including with respect to acts or omissions occurring in connection with this Agreement and the consummation of the transactions contemplated hereby), and provide advancement of expenses to the Indemnified Parties, to the fullest extent permitted by applicable Law as it presently exists or may hereafter be amended (but, in the case of any such amendment, only to the extent such amendment permits Parent or the Surviving Corporation to provide broader indemnification rights or rights of advancement of expenses than such Law permitted Parent or the Surviving Corporation to provide prior to such amendment), (ii) without limitation to clause (i), to the fullest extent permitted by applicable Law, include and cause to be maintained in effect in the Surviving Corporation’s (or any successor’s) organizational documents modify for a period of not less than six years after the Effective Timedate of this Agreement, provisions regarding elimination any and all obligations of liability of the Company and its subsidiaries to indemnify present and former directors, and indemnification of and advancement of expenses to directors and officers or employees of the Company, no less favorable than those contained in the Company’s organizational documents as of the date hereof and Company or its subsidiaries (iiieach an "Indemnified Party") not settle, compromise with respect to matters which occur on or consent prior to the entry of any judgment in any proceeding or threatened litigation, action, suit, arbitration, investigation or similar proceeding (public or private) (“Action”), in each case, by or before a Governmental Authority (and in which indemnification could be sought by an Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing (such consent not to be unreasonably withheld, conditioned or delayed). In the event of any such claim, action, suit, proceeding or investigation, (A) the Surviving Corporation shall have the right to control the defense thereof after the Effective Time, (Bwhether provided in the certificate of incorporation or by-laws of the Company or any of its subsidiaries, in any of the agreements listed on Exhibit 9.1-A(1) each Indemnified Party shall be entitled to retain his or her own counsel, whether or not under the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigation, and (C) the Surviving Corporation shall pay all reasonable fees and expenses of any counsel retained by an Indemnified Party, promptly after statements therefor are received, whether or not the Surviving Corporation shall elect to control the defense of any such claim, action, suit, proceeding or investigationDGCL. The Surviving Corporation will will, maintain in effect for not less than six years after Effective Time, Time with respect to occurrences prior to the Effective Time, Time the Company's policies of directors’ directors and officers' liability insurance which are in effect on the date of this Agreement and are listed on Schedule 10.1 Exhibit 9.1-A(2) (notwithstanding any provisions of those policies that they will terminate as a result of a merger), or provide substantially equivalent coverage and amounts containing terms no less favorable to such directors or officers, and from insurance carriers with at least comparable claims paying ability ratings, Merger) to the extent that such insurance (or substantially similar insurance) is available at an annual cost not exceeding 350% of available. (b) Without limiting the annual cost of foregoing, in the policies of directors event any indemnified claim ("Claim") is brought against any Indemnified Party after the Effective Time, (i) the Indemnified Parties may retain the Company's regularly engaged independent legal counsel, or other independent legal counsel satisfactory to them and officers liability insurance that are in effect at the date of this Agreement (and, to the extent that insurance is not available at an annual cost not exceeding 350% Surviving Corporation, (ii) the Surviving Corporation shall pay all reasonable fees and expenses of counsel for the annual cost of the policies that Indemnified Parties as described below promptly as statements therefor are in effect at the date of this Agreement, received and (iii) the Surviving Corporation will maintain use its best efforts to assist in effect the maximum coverage vigorous defense of any such matter, provided that the Surviving Corporation shall not be liable for any settlement of any Claim effected without its written consent, which consent shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification with regard to a Claim, upon learning of the Claim, shall notify the Surviving Corporation of the Claim (although the failure so to notify the Surviving Corporation shall not relieve the Surviving Corporation from any liability which the Surviving Corporation may have, except to the extent such failure materially prejudices the Surviving Corporation), and shall deliver to the Surviving Corporation the undertaking contemplated by Section 145(e) of the DGCL. The Indemnified Parties as a group may retain one law firm (in addition to local counsel) to represent them with respect to each such matter unless there is, under applicable standards of professional conduct (as determined by counsel to the Indemnified Parties), a conflict on any significant issue between the positions of any two or more Indemnified Parties, in which event, such additional counsel as may be required may be retained by the Indemnified Parties. The Company will pay the fees and expenses of the one law firm (plus local counsel) and, if there is available for that amounta conflict as described in the preceding sentence, fees and expenses of one additional law firm (plus local counsel). Notwithstanding anything in Under no circumstances will the Company be required to pay the fees and expenses of more than two law firms (plus local counsel) with regard to any Claim or group of related Claims. (c) The provisions of this Agreement Paragraph 9.1 are intended to be for the contrarybenefit of, prior to the Effective Timeand will be enforceable by, the Company shall purchase a “tail” insurance policy with a freshrespective directors, unimpaired aggregate limit of liability (which policy by its express terms shall survive the Merger) of at least the same coverage with a fresh, unimpaired aggregate limit of liability, officers and containing terms and conditions that are no less favorable to the directors and officers employees of the Company as the Company’s existing policy or policies, its subsidiaries to which it relates and from insurance carriers with at least comparable claims paying ability ratings, for the benefit of the current their heirs and former officers representatives and directors of the Company with a claims period of six years from the Effective Time with respect to directors’ and officers’ liability insurance for claims arising from facts or events that occurred at or prior to the Effective Time. If will be binding upon the Surviving Corporation is acquired during the period of six years after the date of this Agreement, the Surviving Corporation will require in any agreement relating to its being acquired that the acquirer shall maintain in effect the insurance required by this SectionCorporation.