Common use of Indemnification of Directors and Officers of the Company Clause in Contracts

Indemnification of Directors and Officers of the Company. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer or director (the "Indemnified Party") of the Company or any of its Subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and expenses), judgments, fines, losses, and amounts paid in settlement (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, which consent shall not be unreasonably withheld) in connection with any actual or threatened action, suit, claim, proceeding or investigation (whether arising before or after the Effective Time) (each a "Claim") to the extent that any such Claim is based on, or arises out of, (i) the fact that such person is or was a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or (ii) this Agreement, or any of the transactions contemplated hereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing, or occurring prior to or at the Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Effective Time, to the full extent permitted under applicable law or the Company's Articles of Incorporation, By-Laws or indemnification agreements in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any action or suit. Without limiting the foregoing, in the event any Indemnified Party becomes involved in any capacity in any Claim, then from and after the Effective Date, the Surviving Corporation shall periodically advance to such Indemnified Party its reasonable legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. (b) All rights to indemnification and all limitations on liability existing in favor of an Indemnified Party as provided in the Company's Articles of Incorporation, By-Laws or indemnification agreements as in effect as of the date hereof shall survive the Merger and shall continue in full force and effect, without any amendment thereto, for a period of six years from the Effective Date to the extent such rights are consistent with applicable law; provided, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims; provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Florida law, the Company's Article of Incorporation or By-Laws or such agreements, as the case may be, shall be made by independent legal counsel selected by the Indemnified Party and reasonably acceptable to the Surviving Corporation; and provided, further, that nothing in this Section 4.11 shall impair any rights or obligations of any present or former directors or officers of the Company. (c) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 4.11, proper provision shall be made so that the successors and assigns of the Surviving Corporation, as the case may be, assume the obligations set forth in this Section 4.11 and none of the actions described in the foregoing clauses (i) or (ii) shall be taken until such provision is made. (d) For a period of six years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect, without any lapses in coverage, policies of directors' and officers' liability insurance (or a "tail" policy), for the benefit of those persons who are covered by the Company's directors' and officers' liability insurance policies as of the date hereof, providing coverage with respect to matters occurring prior to the Effective Time that is at least equal to the coverage provided under the Company's current directors' and officers' liability insurance policies (copies of which have heretofore been delivered to Parent), to the extent that such liability insurance can be maintained at an annual cost to the Surviving Corporation of not greater than 200 percent of the premium for the current Company directors' and officers' liability insurance, provided that if such insurance (or "tail" policy) cannot be so maintained at such cost, the Surviving Corporation shall maintain as much of such insurance as can be so maintained at a cost equal to 200 percent of the current annual premiums of the Company for such insurance. (e) This Section 4.11 is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties, their heirs and personal representatives, and shall be binding on Parent and the Surviving Corporation and their successors and assigns.

Indemnification of Directors and Officers of the Company. (a) From and after the Effective Time, the Surviving Corporation shall indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Effective Time, an officer officer, director, employee or director agent (the "Indemnified Party") of the Company or any of its Subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including reasonable attorney's fees and expenses), judgments, fines, losses, and amounts paid in settlement (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, which consent shall not be unreasonably withheld) in connection with any actual or threatened action, suit, claim, proceeding or investigation investigation, (whether arising before or after the Effective Time) (each each, a "Claim") to the extent that any such Claim is based on, or arises out of, (i) the fact that such person is or was a director director, officer, employee or officer agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director director, officer, employee or officer agent of another corporation, partnership, joint venture, trust or other enterprise, or (ii) this Agreement, or any of the transactions contemplated hereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing, or occurring prior to or at the Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Effective Time, to the full extent permitted under applicable law or the Company's Articles certificate of Incorporationincorporation, Byby-Laws laws or indemnification agreements in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any action or suit. Without limiting the foregoing, in the event any Indemnified Party becomes involved in any capacity in any Claim, then from and after the Effective DateTime, the Surviving Corporation shall periodically advance to such Indemnified Party its reasonable legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the provision by 30 40 such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. (b) All rights to indemnification and all limitations on liability existing in favor of an Indemnified Party as provided in the Company's Articles certificate of Incorporationincorporation, Byby-Laws laws or indemnification agreements as in effect as of the date hereof shall survive the Merger and shall continue in full force and effect, without any amendment thereto, for a period of six years from the Effective Date Time to the extent such rights are consistent with applicable law; provided, that in the event any claim or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim or claims shall continue until disposition of any and all such claims; provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Florida Delaware law, the Company's Article certificate of Incorporation incorporation or Byby-Laws laws or such agreements, as the case may be, shall be made by independent legal counsel selected by the Indemnified Party and reasonably acceptable to the Surviving Corporation; and provided, further, that nothing in this Section 4.11 6.3 shall impair any rights or obligations of any present or former directors or officers of the Company. (c) In the event that the Surviving Corporation or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 4.116.3, proper provision shall be made so that the successors and assigns of the Surviving Corporation, as the case may be, Corporation assume the obligations set forth in this Section 4.11 6.3 and none of the actions described in the foregoing clauses (i) or (ii) shall be taken until such provision is made. (d) For a period of six years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect, without any lapses in coverage, policies of directors' and officers' liability insurance (or a "tail" policy), for the benefit of those persons who are covered by the Company's directors' and officers' liability insurance policies as of at the date hereofEffective Time, providing coverage with respect to matters occurring prior to the Effective Time that is at least equal to the coverage provided under the Company's current directors' and officers' liability insurance policies (copies of which have heretofore been delivered to Parent)policies, to the extent that such liability insurance can be maintained at an annual cost to the Surviving Corporation of not greater than 200 percent of the premium for the current Company directors' and officers' liability insurance, provided that if such insurance (or "tail" policy) cannot be so maintained at such cost, the Surviving Corporation shall maintain as much 31 41 of such insurance as can be so maintained at a cost equal to 200 percent of the current annual premiums of the Company for such insurance. (e) This Section 4.11 6.3 is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties, their heirs and personal representatives, and shall be binding on Parent and the Surviving Corporation and their its successors and assigns.

Indemnification of Directors and Officers of the Company. (a) From Prior to the Closing Date, at Parent’s cost, the Company shall purchase, and for six years after the Effective TimeClosing Date, Parent shall, or shall cause the Surviving Corporation shall indemnifyCompany to, defend maintain, a policy of directors’ and hold harmless any officers’ liability insurance coverage for each person who is now, or has been at any time prior to the date hereof, of this Agreement or who becomes prior to the Effective TimeClosing Date, an officer or director (the "Indemnified Party") of the Company or any of its Subsidiaries (each, a “Company Indemnified Party” and collectively, the “Company Indemnified Parties”), which policy shall provide not less than the existing coverage and shall have other terms not materially less favorable to the Company Indemnified Parties than the directors’ and officers’ liability insurance coverage presently maintained covering the Company Indemnified Parties. Notwithstanding anything contained in this Section 8.11 to the contrary, nothing herein shall obligate Parent or the Company to provide more favorable coverage than that presently maintained by the Company. (b) For six years after the Closing Date, Parent shall, or shall cause the Company and its Subsidiaries to, indemnify and hold harmless each Company Indemnified Party against (i) all losses, claims, damages, costs, expenses, liabilities, costs and expenses (including reasonable attorney's fees and expenses), judgments, fines, losses, and judgments or amounts paid in settlement (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, which consent shall not be unreasonably withheld“Company Indemnified Liabilities”) in connection with any actual or threatened claim, action, suit, claim, proceeding or investigation (whether arising before or after the Effective Time) (each a "Claim") to the extent that any such Claim is based on, or arises out of, (i) by reason of the fact that such person is or was a director director, officer or officer employee of the Company or any of its Subsidiaries Subsidiaries, whether pertaining to any matter existing or is occurring at or was serving prior to the Closing Date and whether asserted or claimed prior to, at or after the request of the Company or any of its Subsidiaries as a director or officer of another corporation, partnership, joint venture, trust or other enterprise, or Closing Date and (ii) this Agreementall Company Indemnified Liabilities based in whole or in part on, or any of arising in whole or in part out of, or pertaining to, this Agreement or the transactions contemplated hereby, in each case to the full extent that a corporation is permitted by law to indemnify its own directors and officers (the “Company Indemnified Proceedings”). In the event any Company Indemnified Party is or becomes involved in any Company Indemnified Proceeding, Parent shall, or shall cause the Company or any of its Subsidiaries, as applicable, to pay expenses in advance of the final disposition of any such Claim pertains Company Indemnified Proceeding to any matter or fact arising, existing, or occurring prior to or at the Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Effective Time, each Company Indemnified Party to the full extent permitted under applicable by law or the Company's Articles of Incorporation, By-Laws or indemnification agreements in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense upon receipt of any action undertaking contemplated by Section 145 of the DGCL or suitother applicable Law. Without limiting the foregoing, in the event any such Company Indemnified Proceeding is brought against any Company Indemnified Party, (i) the Company Indemnified Parties may, upon receipt of written approval by the Parent, retain counsel of their choosing, (ii) Parent shall, or shall cause the Company or any of its Subsidiaries, as applicable, to pay all reasonable and documented fees and expenses of such counsel for the Company Indemnified Parties promptly as statements therefor are received, and (iii) Parent, the Company and its Subsidiaries will use commercially reasonable efforts to assist in the defense of any such matter; provided, however, that none of the Parent, the Company and its Subsidiaries shall be liable for any settlement of any claim effected without its written consent, which consent shall not be unreasonably withheld or delayed and further, provided, that if Parent does approve a Company Indemnified Parties retention of counsel, Parent will undertake the defense of such Company Indemnified Parties at its own expense. Any Company Indemnified Party becomes involved in wishing to claim indemnification under this Section 8.11(b) upon becoming aware of any capacity in any Claim, then from and after such Company Indemnified Proceeding shall promptly notify Parent (but the Effective Datefailure to so notify Parent shall not relieve Parent, the Surviving Corporation shall periodically advance to such Indemnified Party Company or any of its reasonable legal and other expenses (including the cost of Subsidiaries from any investigation and preparation incurred in connection therewith), subject to the provision by such Indemnified Party of an undertaking to reimburse the amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Party is not entitled thereto. (bliability it may have under this Section 8.11(b) All rights to indemnification and all limitations on liability existing in favor of an Indemnified Party as provided in the Company's Articles of Incorporation, By-Laws or indemnification agreements as in effect as of the date hereof shall survive the Merger and shall continue in full force and effect, without any amendment thereto, for a period of six years from the Effective Date except to the extent such rights are consistent with applicable law; providedfailure materially prejudices Parent, that in the event any claim Company or claims are asserted or made within such six-year period, all rights to indemnification in respect of any such claim Subsidiary), and shall deliver to Parent, the Company or claims shall continue until disposition its Subsidiary, as applicable, the undertaking contemplated by Section 145 of any and all such claims; provided, further, that any determination required the DGCL or other applicable Law. The Company Indemnified Parties as a group may retain only one law firm to be made represent them with respect to whether an each such Company Indemnified Party's conduct complies with Proceeding unless there is, under applicable standards of professional conduct, a conflict on any significant issue between the standards set forth under Florida lawpositions of any two or more Company Indemnified Parties, in which case, the Company's Article foregoing limitation shall not apply and, without limitation of Incorporation or By-Laws or such agreementsthe other indemnification obligations of Parent, as the case may be, shall be made by independent legal counsel selected by the Indemnified Party Company and reasonably acceptable to the Surviving Corporation; and provided, further, that nothing in its Subsidiaries under this Section 4.11 8.11(b), Parent shall, or shall impair cause the Company or any rights or obligations of any present or former directors or officers its Subsidiaries to, pay the reasonable and documented fees and expenses of all of the CompanyCompany Indemnified Parties, including such fees and expenses of such additional law firm(s). (c) In Parent will, and will cause the event that Company and its Subsidiaries to, fulfill and honor all rights to indemnification existing as of the Surviving Corporation date of this Agreement in favor of the Company Indemnified Parties, including pursuant to any indemnification agreements between the Company or any of its successors Subsidiaries and any Company Indemnified Party. Following the Closing Date, the certificate of incorporation and bylaws of the Company will contain provisions with respect to exculpation and indemnification that are at least as favorable to the Company Indemnified Parties as those contained in the certificate of incorporation and bylaws of the Company as in effect on the date hereof, which provisions will not be amended, repealed or assigns otherwise modified in any manner that would adversely affect the rights thereunder of the Company Indemnified Parties. (d) This Section 8.11 (i) shall survive the consummation of the transactions contemplated hereby, (ii) is intended to be for the benefit of, and shall be enforceable by, the Company Indemnified Parties and their heirs and personal representatives and shall be binding on Parent, the Company, its Subsidiaries and their successors and assigns and (iii) shall be 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. In the event Parent, the Company, any of its Subsidiaries, or any successor or assign (x) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity of in such consolidation or merger or (iiy) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, to the extent necessary to effectuate the purposes of this Section 4.11, proper provision shall be made so that the successors and assigns of the Surviving Corporationsuch successor or assign, as the case may be, assume honors the obligations of Parent or the Company, as the case may be, set forth in this Section 4.11 and none of the actions described in the foregoing clauses (i) or (ii) shall be taken until such provision is made8.11. (d) For a period of six years after the Effective Time, the Surviving Corporation shall cause to be maintained in effect, without any lapses in coverage, policies of directors' and officers' liability insurance (or a "tail" policy), for the benefit of those persons who are covered by the Company's directors' and officers' liability insurance policies as of the date hereof, providing coverage with respect to matters occurring prior to the Effective Time that is at least equal to the coverage provided under the Company's current directors' and officers' liability insurance policies (copies of which have heretofore been delivered to Parent), to the extent that such liability insurance can be maintained at an annual cost to the Surviving Corporation of not greater than 200 percent of the premium for the current Company directors' and officers' liability insurance, provided that if such insurance (or "tail" policy) cannot be so maintained at such cost, the Surviving Corporation shall maintain as much of such insurance as can be so maintained at a cost equal to 200 percent of the current annual premiums of the Company for such insurance. (e) This Section 4.11 is intended to be for the benefit of, and shall be enforceable by, the Indemnified Parties, their heirs and personal representatives, and shall be binding on Parent and the Surviving Corporation and their successors and assigns.