Common use of Indemnification of Managers and Officers Clause in Contracts

Indemnification of Managers and Officers. (a) The Company shall indemnify and hold harmless, to the fullest extent permitted by Applicable Law, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether brought by or on behalf of the Company by reason of the fact that such person is or was a Member, Manager or an Officer of the Company (each, an “Indemnitee”), against reasonable and documented expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding; provided, however, no Indemnitee shall be entitled to indemnification under this Section 7.04(a) if his, her or its actions were in bad faith, were not done with the reasonable belief that such actions were in the best interests of the Company or were a criminal act. (b) The Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in defending a civil, criminal, administrative or investigative action, suit or proceeding brought by a party (other than a direct action by the Company) against the Indemnitee in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company as authorized in this Section 7.04. (c) Notwithstanding any other provision of this Section 7.04, the Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with such Indemnitee’s appearance as a witness or other participant on behalf of the Company in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding. (d) The right of indemnification and reimbursement provided in this Section 7.04 shall be in addition to any rights to which an Indemnitee may otherwise be entitled and shall inure to the benefit of the executors, administrators, personal representatives, successors or assigns of each Indemnitee. (e) The rights to indemnification and reimbursement provided for in this Section 7.04 may be satisfied only out of the assets of the Company, and none of the Members shall be personally liable for any claim for indemnification or reimbursement under this Section 7.04.

Indemnification of Managers and Officers. (a) The certificate of formation and limited liability company agreement of the Surviving Company shall indemnify shall, with respect to indemnification of managers, officers, employees and hold harmlessagents, not be amended, repealed or otherwise modified after the Effective Time in any manner that would adversely affect the rights thereunder of the Persons who at any time prior to the Effective Time were identified as prospective indemnitees under the Company Charter or the Company Bylaws in respect of actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement). (b) From and after the Effective Time, Parent and the Surviving Company shall, to the fullest extent permitted by Applicable applicable Law, any Person who was or is a party or is threatened to be made a party to any threatenedindemnify, pending or completed actiondefend and hold harmless the present and former directors, suit or proceedingofficers, whether civilemployees, criminal, administrative or investigative agents and whether brought by or on behalf fiduciaries of the Company by reason or any of its Subsidiaries in their capacities as such (each, an “Indemnified Party”) against all losses, claims, damages, costs, expenses, liabilities or judgments or amounts that are paid in settlement of or in connection with any claim based in whole or in part on or arising in whole or in part out of the fact that such person Indemnified Party is or was a Memberdirector, Manager officer, employee, agent or an Officer fiduciary of the Company (eachCompany, an “Indemnitee”)any Subsidiary of the Company, against reasonable or of any other corporation, partnership, joint venture, trust, employee benefit plan or other enterprise in which such Indemnified Party was serving at the request of the Company, and documented expenses pertaining to any matter existing or occurring, or any acts or omissions occurring, at or prior to the Effective Time, whether asserted or claimed prior to, or at or after, the Effective Time (including attorneys’ fees)matters, judgments, fines and amounts paid in settlement actually and reasonably incurred by him acts or omissions occurring in connection with such action, suit the approval of this Agreement and the consummation of the Merger and the other transactions contemplated by this Agreement) or proceedingtaken at the request of Parent or otherwise under this Agreement; provided, however, no Indemnitee that neither Parent nor the Surviving Company shall be entitled have any obligation to provide such indemnification under this Section 7.04(a) if histo the extent a court of competent jurisdiction reaches a final determination, her or its actions were in bad faithnot subject to appeal, were not done with the reasonable belief that such actions were in the best interests of the Company or were a criminal act. (b) The Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in defending a civil, criminal, administrative or investigative action, suit or proceeding brought by a party (other than a direct action by the Company) against the Indemnitee in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee indemnification is not entitled to be indemnified by the Company as authorized in this Section 7.04prohibited under applicable Law. (c) Notwithstanding any other provision of this Section 7.04, Parent shall cause the Company shall pay or reimburse reasonable individuals serving as officers and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with such Indemnitee’s appearance as a witness or other participant on behalf directors of the Company in or any of its Subsidiaries immediately prior to the Effective Time and any other Person who is covered by the Company’s current directors’ and officers’ liability insurance policy to be covered with respect to acts or omissions occurring prior to the Effective Time for a proceeding involving or affecting period of six (6) years from the Effective Time by (i) the directors’ and officers’ liability insurance policy maintained by the Company (provided, that Parent may substitute therefor policies, issued by reputable insurers, with policy limits, terms and conditions at a time when least as favorable as the Indemnitee is not a named defendant or respondent limits, terms and conditions in the proceedingexisting policy(ies) of the Company) or (ii) a single premium tail coverage with respect to such directors’ and officers’ liability insurance with policy limits, terms and conditions at least as favorable as the limits, terms and conditions in the existing policy(ies) of the Company; provided, however, that in no event shall Parent be required to expend annually in the aggregate an amount pursuant to this Section 6.8(c) in excess of 250% of the annual premiums currently paid by the Company for such insurance (the “Insurance Amount”); and provided, further, that if such insurance coverage cannot be obtained at all, or can only be obtained at an annual premium in excess of the Insurance Amount, Parent will obtain the maximum amount of directors’ and officers’ insurance (or “tail” coverage) obtainable for an annual premium equal to the Insurance Amount. (d) The right In the event Parent or any of indemnification and reimbursement provided in this Section 7.04 shall be in addition to any rights to which an Indemnitee may otherwise be entitled and shall inure to the benefit of the executors, administrators, personal representatives, its successors or assigns or the Surviving Company or any of its successors or assigns (i) consolidates with or merges into any other Person and shall not be the continuing or Surviving Company 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 Indemniteesuch case, proper provision shall be made so that the successors and assigns of Parent or the Surviving Company, as applicable, assume the obligations set forth in this Section. (e) The rights to indemnification Parent shall pay all expenses, including attorney’s and reimbursement expert’s fees and expenses, that may be incurred by any Indemnified Party in enforcing the indemnity and other obligations provided for in this Section 7.04 may 6.8 (provided that such Indemnified Party prevails). (f) Any determination to be satisfied only out made as to whether any Indemnified Party has met any standard of conduct imposed by law shall be made by legal counsel reasonably acceptable to such Indemnified Party, Parent and the assets of the Surviving Company, retained at Parent’s and none the Surviving Company’s expense. (g) The provisions of this Section 6.8 shall survive the Members Effective Time and are intended to be for the benefit of, and shall be personally liable for any claim for indemnification enforceable by, each Indemnified Party and his or reimbursement under this Section 7.04her heirs and representatives.

Indemnification of Managers and Officers. (a) The From the Closing through the sixth anniversary of the Closing Date, each of Purchaser and the Company shall shall, jointly and severally, indemnify and hold harmlessharmless each person who is now, or has been at any time prior to the fullest extent permitted by Applicable Lawdate hereof, or who becomes prior to the Closing Date, a manager or officer of the Company or any Person who was or is a party or is threatened to be made a party to predecessor thereof (the “Company Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements, incurred in connection with any threatenedclaim, pending or completed action, suit suit, proceeding or proceedinginvestigation, whether civil, criminal, administrative or investigative and whether brought by investigative, arising out of or on behalf of the Company by reason of pertaining to the fact that such person the Company Indemnified Party is or was a Member, Manager an officer or an Officer of the Company (each, an “Indemnitee”), against reasonable and documented expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding; provided, however, no Indemnitee shall be entitled to indemnification under this Section 7.04(a) if his, her or its actions were in bad faith, were not done with the reasonable belief that such actions were in the best interests manager of the Company or were a criminal act. (b) The any of its Subsidiaries or any predecessor thereof, whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent that indemnification is available under the Delaware General Corporation Law for officers and directors of Delaware corporations. Each Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in defending a civilIndemnified Party will be entitled to advancement of expenses, criminal, administrative or investigative action, suit or proceeding brought by a party (other than a direct action by the Company) against the Indemnitee in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such Indemnitee Company Indemnified Party to repay such amount if it shall ultimately be determined that such Indemnitee Company Indemnified Party is not entitled to be indemnified by under the Company Delaware General Corporation Law for officers and directors of Delaware corporations, as authorized in this section incurred in the defense of any such claim, action, suit, proceeding or investigation from each of the Purchaser and the Company within five (5) Business Days of receipt by the Purchaser or the Company from the Company Indemnified Party of a request therefor. (b) The Purchaser shall pay all expenses, including reasonable attorneys’ fees, that may be incurred by the persons referred to in this Section 7.047.5 in connection with their successful enforcement of their rights provided in this Section 7.5. (c) Notwithstanding any other provision The provisions of this Section 7.04, the Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with such Indemnitee’s appearance as a witness or other participant on behalf of the Company in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding. (d) The right of indemnification and reimbursement provided in this Section 7.04 shall 7.5 are intended to be in addition to any the rights otherwise available to which an Indemnitee may otherwise be entitled the Company Indemnified Parties by law, statute, by-law or agreement, and shall inure to operate for the benefit of, and shall be enforceable by, each of the executorsCompany Indemnified Parties, administrators, personal their heirs and their representatives, successors or assigns of each Indemnitee. (e) The rights to indemnification and reimbursement provided for in this Section 7.04 may be satisfied only out of the assets of the Company, and none of the Members shall be personally liable for any claim for indemnification or reimbursement under this Section 7.04.

Indemnification of Managers and Officers. (a) The Company shall indemnify Buyer agrees that all rights to exculpation, indemnification and hold harmless, advancement of expenses for acts or omissions occurring at or prior to the fullest extent permitted by Applicable Law, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceedingEffective Time, whether civilasserted or claimed prior to, criminalat or after the Effective Time, administrative existing as of the Execution Date in favor of the Seller Indemnified Parties as provided in the Target Companies’ respective certificates of formation, operating agreements or investigative other organizational documents or in any agreement shall survive the transactions contemplated by this Agreement and whether brought by or on behalf shall continue in full force and effect for a period of not less than six years following the Effective Time. For a period of six years from the Effective Time, Buyer shall cause the Company to maintain in effect any and all exculpation, indemnification and advancement of expenses provisions of the Company’s and any of the Company by reason Subsidiaries’ certificates of formation, operating agreements or similar organizational documents in effect immediately prior to the fact that such person is Effective Time or was a Member, Manager or an Officer in any indemnification agreements of the Company or the Company Subsidiaries with any of the Seller Indemnified Parties in effect immediately prior to the Execution Date (each, an “Indemnitee”to the extent that same has been fully disclosed to Buyer and full and complete copies thereof have been delivered to Buyer prior to the Execution Date), against reasonable and documented shall not amend, repeal or otherwise modify any such provisions or the exculpation, indemnification or advancement of expenses (including attorneys’ fees), judgments, fines and amounts paid provisions of the Surviving Company’s Governing Documents in settlement actually and reasonably incurred by him in connection with such action, suit or proceedingany manner that would adversely affect the rights thereunder of any individual who immediately before the Effective Time was an Arrow Release Party; provided, however, no Indemnitee that all rights to exculpation, indemnification and advancement of expenses in respect of any Proceeding pending or asserted or any claim made within such period shall be entitled to indemnification under this Section 7.04(a) if his, her or its actions were in bad faith, were not done with continue until the reasonable belief that such actions were in the best interests of the Company or were a criminal act. (b) The Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in defending a civil, criminal, administrative or investigative action, suit or proceeding brought by a party (other than a direct action by the Company) against the Indemnitee in advance of the final disposition of such action, suit Proceeding or proceeding upon receipt of an undertaking by or on behalf resolution of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company as authorized in this Section 7.04claim. (c) Notwithstanding any other provision of this Section 7.04, the Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with such Indemnitee’s appearance as a witness or other participant on behalf of the Company in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding. (d) The right of indemnification and reimbursement provided in this Section 7.04 shall be in addition to any rights to which an Indemnitee may otherwise be entitled and shall inure to the benefit of the executors, administrators, personal representatives, successors or assigns of each Indemnitee. (e) The rights to indemnification and reimbursement provided for in this Section 7.04 may be satisfied only out of the assets of the Company, and none of the Members shall be personally liable for any claim for indemnification or reimbursement under this Section 7.04.

Indemnification of Managers and Officers. (a) The Company shall indemnify and hold harmlessindemnify, to the fullest full extent then permitted by Applicable Lawtaw, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether brought by or on behalf of the Company investigative, by reason of the fact that such person Person is or was a Member, Manager manager or an Officer officer of the Company (eachor an officer, an “Indemnitee”)employee or agent of the Company, against reasonable and documented expenses (or is or was serving at the request of the Company as a director, trustee, officer, employee or agent of another limited liability company, corporation, partnership, joint venture, trust or other enterprise. The Company shall pay, to the full extent then permitted by law, expenses, including attorneys’ attorney’s fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him such person in connection with defending any such action, suit or proceeding; providedproceeding as they are incurred, however, no Indemnitee shall be entitled to indemnification under this Section 7.04(a) if his, her or its actions were in bad faith, were not done with the reasonable belief that such actions were in the best interests of the Company or were a criminal act. (b) The Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in defending a civil, criminal, administrative or investigative action, suit or proceeding brought by a party (other than a direct action by the Company) against the Indemnitee in advance of the final disposition of thereof, and may pay, in the same manner and to the full extent then permitted by law, such action, suit or proceeding upon receipt of an undertaking expenses incurred by or on behalf of such Indemnitee to repay such amount if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified by the Company as authorized in this Section 7.04. (c) Notwithstanding any other provision of this Section 7.04, the Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with such Indemnitee’s appearance as a witness or other participant on behalf of the Company in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding. (d) Person. The right of indemnification and reimbursement payment of expenses provided in this Section 7.04 hereby shall not be exclusive of, and shall be in addition to, any other rights granted to those seeking indemnification under any rights law, the Articles of Organization, any agreement, or otherwise, both as to which an Indemnitee may otherwise action in official capacities and as to action in another capacity while he or she is a manager, trustee, officer, employee or agent of the Company, and shall continue as to a Person who has ceased to be entitled a manager, trustee, officer, employee or agent and shall inure to the benefit of the executorsheirs, administrators, personal representatives, successors or assigns executors and administrators of each Indemniteesuch a Person. (eb) The rights Company may, to indemnification the full extent then permitted by law and reimbursement provided authorized by the Member, purchase and maintain insurance or furnish similar protection, including but not limited to trust funds, letters of credit or self-insurance, on behalf of or for any Persons described in this Section 7.04 8.1 against any liability asserted against and incurred by any such Person in any such capacity, or arising out of his status as such, whether or not the Company would have the power to indemnify such Person against such liability. Insurance may be satisfied only out purchased from or maintained with a Person in which the Company has a financial interest. (c) The Company, upon approval of the assets of Member, may enter into agreements with any Persons whom the CompanyCompany may indemnify under applicable law and undertake thereby to indemnify such Persons and to pay the expenses incurred by them in defending any action, and none of suit or proceeding against them, whether or not the Members shall be personally liable for any claim for indemnification or reimbursement Company would have the power under this Section 7.04Agreement to indemnify any such person.

Indemnification of Managers and Officers. (a) The Company shall indemnify and hold harmlessshall, to the fullest extent permitted by Applicable Lawlegally permissible, any Person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative indemnify each of its Managers and whether brought by or on behalf of the Company by reason of the fact that such person is or was a Member, Manager or an Officer of the Company (each, an “Indemnitee”), against reasonable and documented expenses Officers (including attorneys’ fees)persons who serve at its request as directions, judgmentsmanagers, fines officers or trustees of another organization) against all liabilities and expenses, including amounts paid in settlement actually satisfaction of judgments, in compromise or as fines and penalties, and counsel fees, reasonably incurred by him in connection with such the defense or disposition of any action, suit or other proceeding; provided, howeverwhether civil or criminal, no Indemnitee in which he may be involved or with which he may be threatened, while in office or thereafter, by reason of his being or having been such a director, manager, officer or trustee, except with respect to any matter as to which he shall be entitled have been adjudicated in any proceeding not to indemnification under this Section 7.04(a) if his, her or its actions were have acted in bad faith, were not done with good faith in the reasonable belief that such actions were this action was not unlawful and was in the best interests of the Company Company; provided, however, that as to any matter disposed of by a compromise payment by such Manager or were Officer, pursuant to a criminal act. consent decree or otherwise, no indemnification either for said payment or for any other expenses shall be provided unless such compromise shall be approved as in the best interests of the Company, after notice that it involves such indemnification: (a) by a majority of the disinterested Managers then in office, provided that there has been obtained an opinion in writing of independent legal counsel to the effect that such Manager or Officer appears to have acted in good faith in the reasonable belief that his action was in the best interests of the Company; or, if there are fewer than three disinterested Managers, then (b) The Company shall pay or reimburse reasonable and documented expenses (by the Member. Expenses, including reasonable attorneys’ counsel fees) , reasonably incurred by an Indemnitee any Manager or officer in defending a civil, criminal, administrative connection with the defense or investigative disposition of any such action, suit or other proceeding brought by a party (other than a direct action shall be paid from time to time by the Company) against the Indemnitee Company in advance of the final disposition of such action, suit or proceeding thereof upon receipt of an undertaking by such Manager or on behalf of such Indemnitee Officer to repay such amount the amounts so paid to the Company if it shall is ultimately be determined that indemnification for such Indemnitee expenses is not entitled authorized under this section. In the event that indemnification is to be indemnified provided hereunder for any liability or expense relating to a proceeding in which a Manager or Officer of this Company may be involved or with which he may be threatened by reason of his serving or having served at this Company’s request as a director, manager, officer or trustee of another organization, the amount of any indemnification otherwise to be provided hereunder shall be reduced by the Company amount of any indemnification or any proceeds of insurance available to such director, manager, officer or trustee from or through the other organization where he served or was serving at this Company’s request as authorized in this Section 7.04. (c) Notwithstanding any other provision director, manager, officer or trustee, unless the Managers of this Section 7.04, the Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with such Indemnitee’s appearance as a witness or other participant on behalf of the Company in a proceeding involving or affecting the Company at a time when the Indemnitee is not a named defendant or respondent in the proceeding. (d) determine otherwise. The foregoing right of indemnification and reimbursement provided shall not be exclusive of any other rights so which any such Manager or Officer is entitled under any agreement, vote of the Member, statute, or as a matter of law, or otherwise. As used in this Section 7.04 section, the terms “director,” “manager,” “officer” and “trustee” include their respective heirs, executors and administrators, and an “interested” Manager or Officer is one against whom in such capacity the proceedings in question or another proceeding on the same or similar grounds in then pending. Nothing contained in this section shall be in addition to effect any rights to indemnification in which an Indemnitee Company personnel other than Managers and Officers may otherwise be entitled and shall inure to the benefit by contract or otherwise under law. The provisions of the executors, administrators, personal representatives, successors or assigns of each Indemnitee. (e) The rights to indemnification and reimbursement provided for in this Section 7.04 may be satisfied only out of the assets of the Companysection are separable, and none of the Members if any provision or portion hereof shall be personally liable for any claim for reason be held inapplicable, illegal or ineffective, this shall not affect any right of indemnification or reimbursement existing under this Section 7.04section.

Indemnification of Managers and Officers. (ai) The From and after the Effective Time, each of Parent and the Surviving Company agrees that it shall indemnify and hold harmlessharmless each present and former manager, to director and officer of the fullest extent permitted by Applicable LawCompany or any of its Company Subsidiaries (in each case, when acting in such capacity), determined as of the Effective Time (the “Company Indemnified Persons”), against any Person who was or is a party or is threatened to be made a party to Losses incurred in connection with any threatenedclaim, pending or completed action, suit suit, proceeding or proceedinginvestigation, whether civil, criminal, administrative or investigative and whether brought by investigative, arising out of matters existing or on behalf occurring at or prior to the Effective Time (including claims arising out of the Company by reason of the fact that such person is or was a Member, Manager or an Officer of the Company (each, an “Indemnitee”this Agreement), against reasonable and documented whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable Law or certificate of formation, limited liability company agreement, Charter Documents or any indemnification contracts disclosed to Parent, in each case, as in effect on the date of this Agreement; provided that the Person to whom expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by him in connection with such action, suit or proceeding; provided, however, no Indemnitee shall be entitled to indemnification under this Section 7.04(a) if his, her or its actions were in bad faith, were not done with the reasonable belief that such actions were in the best interests of the Company or were a criminal act. (b) The Company shall pay or reimburse reasonable and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in defending a civil, criminal, administrative or investigative action, suit or proceeding brought by a party (other than a direct action by the Company) against the Indemnitee in advance of the final disposition of such action, suit or proceeding upon receipt of are advanced provides an undertaking by or on behalf of such Indemnitee to repay such amount advances if it shall is ultimately be determined by non-appealable order of a court of competent jurisdiction that such Indemnitee Person is not entitled to indemnification); and provided, further, that any determination required to be indemnified made with respect to whether an officer’s, manager’s or director’s conduct complies with the standards set forth under Delaware law and the Company’s certificate of formation, limited liability company agreement or any indemnification contract disclosed to Parent, in each case, as in effect on the date of this Agreement shall be made by independent counsel selected by the Surviving Company as authorized in this Section 7.04and reasonably acceptable to the Company Indemnified Person. (cii) Notwithstanding Any Company Indemnified Person wishing to claim indemnification under Section 5.9(a)(i), upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, but the failure to so notify shall not relieve Parent or the Surviving Company of any liability it may have to such Company Indemnified Person except to the extent such failure prejudices the indemnifying party. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (A) Parent or the Surviving Company shall have the right to assume the defense thereof and Parent and the Surviving Company shall not be liable to such Company Indemnified Persons for any legal expenses of other counsel or any other provision expenses subsequently incurred by such Company Indemnified Persons in connection with the defense thereof, except that if neither Parent nor the Surviving Company elects to assume such defense or counsel for the Company Indemnified Persons provides Parent with a written legal opinion stating that there are material issues that raise conflicts of this Section 7.04interest between Parent or the Surviving Company and the Company Indemnified Persons such that one counsel cannot represent both parties, The Company Indemnified Persons may retain additional counsel reasonably satisfactory to Parent, and Parent or the Surviving Company shall pay or reimburse all reasonable fees and documented expenses (including reasonable attorneys’ fees) incurred by an Indemnitee in connection with of such Indemnitee’s appearance as a witness or other participant on behalf of counsel for the Company Indemnified Persons promptly as statements therefor are received; provided, that Parent and the Surviving Company shall be obligated pursuant to this Section 5.9(a)(ii) to pay for only one firm of counsel for all Company Indemnified Persons in a proceeding involving or affecting any jurisdiction; (B) the Company at a time when the Indemnitee is not a named defendant or respondent Indemnified Persons shall cooperate in the proceeding. defense of any such matter; and (dC) The right of indemnification Parent and reimbursement provided in this Section 7.04 the Surviving Company shall not be in addition to any rights to which an Indemnitee may otherwise be entitled and shall inure to the benefit of the executors, administrators, personal representatives, successors or assigns of each Indemnitee. (e) The rights to indemnification and reimbursement provided for in this Section 7.04 may be satisfied only out of the assets of the Company, and none of the Members shall be personally liable for any claim for settlement effected without their prior written consent; and provided, further, that in the case of clauses (A), (B) and (C) Parent and the Surviving Company shall not have any obligation hereunder to any Company Indemnified Person if and when a court of competent jurisdiction shall ultimately determine, and such determination shall have become final by non-appealable order, that the indemnification or reimbursement under this Section 7.04of such Company Indemnified Person in the manner contemplated hereby is prohibited by applicable Law.