Common use of Indemnification of Members Clause in Contracts

Indemnification of Members. The Company shall indemnify and hold harmless the Members and their Affiliates (other than the Company and its subsidiaries), and their respective directors, officers, constituent partners, employees and advisors and other representatives, and the Managers designated by the Members (individually, an “Indemnitee”), as follows (provided that no such indemnification shall be available to a Member and its Affiliates in respect of any claim which is an indemnifiable claim against any of them pursuant to Section 12.2 or 12.3 of the Merger Agreement): (a) In any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, to which an Indemnitee was or is a party or is threatened to be made a party by reason of the fact that such Indemnitee is or was a Member or an Affiliate of a Member (other than the Company and its subsidiaries) or a director, officer, employee, or constituent partner of a Member or an Affiliate of a Member (other than the Company and its subsidiaries), or a Manager, the Company shall indemnify such Indemnitee against attorneys’ fees, judgments, fines, penalties, settlements, and reasonable expenses actually incurred by such Indemnitee in connection with the defense or settlement of such action, suit or proceeding, if such Indemnitee acted in good faith, and in the case of the exercise of authority by the Indemnitee under the Delaware Act or this Agreement, other than service for another enterprise, in a manner reasonably believed by such Indemnitee to be in the best interests of the Company and, in all other cases, that the Indemnitee’s conduct was at least not opposed to the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, shall indemnification ever be made in relation to a proceeding in which the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful or intentional misconduct, in the Indemnitee’s performance of its duty to the Company or in relation to a proceeding which arises out of a material violation by the Indemnitee of the terms and provisions of this Agreement. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company or not opposed to the Company’s best interests. (b) Promptly after receipt by an Indemnitee of notice of the commencement of any proceeding against it, such Indemnitee will, if a claim is to be made against the Company, give notice to the Company of the commencement of such claim, but the failure to notify the Company will not relieve the Company of any liability that it may have to any Indemnitee, except to the extent that the Company demonstrates that the defense of such action is prejudiced by the Indemnitee’s failure to give such notice. (c) If any proceeding is brought against an Indemnitee and it gives notice to the Company of the commencement of such proceeding, the Company will, to the extent that it wishes (unless (i) the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation would be inappropriate, or (ii) the Company fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), assume the defense of such proceeding with counsel satisfactory to the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this section for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigation. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of such claims may be effected by the Company without the Indemnitee’s consent (which consent shall not be unreasonably withheld) unless (A) there is no finding or admission of any violation of legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Company and (ii) the Indemnitee will have no liability with respect to any compromise or settlement of such claims effected without its consent (which consent shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by the Indemnitee. (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitee may, by notice to the Company, assume the exclusive right to defend, compromise, or settle such proceeding, but the Company will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). (e) Any indemnification permitted under this Section 7.9 shall be made only out of the assets of the Company and no Member shall be obligated to contribute to the capital of or loan funds to, the Company to enable the Company to provide such indemnification. (f) The indemnification provided by this Section 7.9 shall be in addition to any other rights to which each Indemnitee may be entitled under any agreement or vote of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s capacity as a Member, as a director, officer, employee, or constituent partner of a Member, or as a Manager, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, administrators, and personal representatives of the Indemnitee. (g) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if approved by the Management Committee. (h) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. (i) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Persons.

Indemnification of Members. The Company shall will indemnify and hold harmless the Members and their Affiliates (other than Manager, the Company and its subsidiaries)Members, and their respective the directors, officers, constituent partners, and employees and advisors and other representativesof the Manager or the Members, and the Managers designated by members of the Members Board (individually, an “"Indemnitee”"), as follows (provided that no such indemnification shall be available to a Member and its Affiliates in respect of any claim which is an indemnifiable claim against any of them pursuant to Section 12.2 or 12.3 of the Merger Agreement):follows: (a) In any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, to which an Indemnitee was or is a party or is threatened to be made a party by reason of any act performed or omitted to be performed in the fact that such Indemnitee is name of or was a Member or an Affiliate on behalf of a Member (other than the Company and its subsidiaries) or a director, officer, employee, or constituent partner of a Member or an Affiliate of a Member (other than in connection with the Company and its subsidiaries), or a ManagerCompany's business, the Company shall will indemnify such Indemnitee against attorneys’ ' fees, judgments, fines, penalties, including excise and similar taxes, settlements, and reasonable expenses actually incurred by such Indemnitee in connection with the defense or settlement of such action, suit suit, or proceeding, if such Indemnitee acted in all cases in good faith, within such Indemnitee's scope of authority, without gross negligence or willful misconduct, and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company, and in the case of the exercise of authority by the Indemnitee under the Delaware Act or this Agreement, other than service for another enterprise, in a manner reasonably believed by such Indemnitee to be in the best interests of the Company and, in all other cases, that the Indemnitee’s conduct was at least not opposed to the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, shall will indemnification ever be made in relation to a proceeding in which between the Members, to the extent that the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful grossly negligent, willful, or intentional misconduct, misconduct in the Indemnitee’s 's performance of its duty to the Company or in relation to a proceeding which arises out of the extent that the Indemnitee has committed a material violation by the Indemnitee of the terms and provisions of this Agreement. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company or not opposed to the Company’s best interests. (b) Promptly after receipt If a claim or assertion of liability is made or asserted by a third party against an Indemnitee, which, if prevailed upon by any such third party, would result in such Indemnitee of being entitled to indemnification pursuant to this Section 7.9. the Indemnitee will forthwith give to the Company written notice of the commencement claims or assertion of any proceeding against it, such Indemnitee will, if a claim is to be made against the Company, give notice to liability and request the Company of to defend the commencement of such claim, but the failure same. Failure to so notify the Company will not relieve the Company of any liability that it may which the Company might have to any Indemnitee, the Indemnitee except to the extent that such failure actually prejudices the Company's position. The Company will have the right and the obligation to defend against such claim or assertion (only if the Indemnitee is entitled to indemnification pursuant to this Section 7.9). and the Company demonstrates that will give written notice to the Indemnitee of acceptance of the defense of such action is prejudiced claim and the name of the counsel selected by the Indemnitee’s failure Company to give defend such noticeclaim. The Indemnitee will be entitled to participate with the Company in such defense and also will be entitled at its option (and at its own expense) to employ separate counsel for such defense. (c) If any proceeding is brought against an Indemnitee and it gives notice to the Company of the commencement of such proceeding, the Company will, to the extent that it wishes (unless (i) the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation would be inappropriate, or (ii) the Company fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), assume the defense of such proceeding with counsel satisfactory to the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this section for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigation. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of such claims may be effected by the Company without the Indemnitee’s consent (which consent shall not be unreasonably withheld) unless (A) there is no finding or admission of any violation of legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Company and (ii) the No Indemnitee will have no liability with respect to any compromise or settlement of such claims effected without its consent (which consent shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by the Indemnitee. (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this AgreementSection 7.9 if it has entered into any settlement or compromise of any claim giving rise to any indemnifiable loss without the written consent of the Company. If a bona fide settlement offer is made with respect to a claim and the Company desires to accept and agree to such offer, the Indemnitee may, by Company will give notice to the CompanyIndemnitee to that effect (the "Settlement Notice"). If the Indemnitee fails to consent to the settlement offer within ten (10) calendar days after receipt of the Settlement Notice, assume then the exclusive right Indemnitee will be deemed to defendhave rejected such settlement offer and will be responsible for continuing the defense of such claim and, compromisein such event, or settle such proceeding, but the maximum liability of the Company as to such claim will not be bound exceed the amount of such settlement offer plus any and all reasonable costs and expenses paid or incurred by any determination the Indemnitee up to the date of a proceeding so defended or any compromise or settlement effected without its consent (the Settlement Notice and which may not be unreasonably withheld)are otherwise the responsibility of the Company pursuant to this Section 7.9. (ed) Any indemnification permitted under this Section 7.9 shall will be made only out of the assets of the Company and no Member shall will be obligated to contribute to the capital of of, or loan funds to, the Company to enable the Company to provide such indemnification. (fe) The indemnification provided by this Section 7.9 shall will be in addition to any other rights to which each Indemnitee may be entitled under any agreement or vote of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s 's capacity as a the Manager, Member, as a director, officer, employee, or constituent partner employee of a Memberthe Manager or the Members, or as a Managermember of the Board, and shall will continue as to an Indemnitee who has ceased to serve in such capacity and shall will inure to the benefit of the heirs, successors, assigns, administrators, administrators and personal representatives of the Indemnitee. (gf) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if the purchase of such insurance has been unanimously approved by the Management CommitteeMembers. (hg) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. In addition, the Members acknowledge and agree that the Members, and the officers, directors, and employees of the Members, are listed as Indemnitees pursuant to this Section 7.9 because of the possibility that such Persons, in their capacity as Members (or officers, directors, or employees thereof), may be named as a defendant in any suit involving the Company or its activities. (ih) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall will not be deemed to create any rights for the benefit of any other Persons.

Indemnification of Members. Representatives, Officers, ------------------------------------------------------ and Others. ---------- (a) The Company shall hereby agrees to indemnify and hold harmless any Person (each an "Indemnified Person") to the Members and their Affiliates fullest extent permitted under the ------------------ Act, as the same now exists or may hereafter be amended, substituted or replaced (other but, in the case of any such amendment, substitution or replacement only to the extent that such amendment, substitution or replacement permits the Company to provide broader indemnification rights than the Company and its subsidiariesis providing immediately prior to such amendment), against all expenses, liabilities and their respective directorslosses (including attorney fees, officersjudgments, constituent partnersfines, employees and advisors and other representatives, and the Managers designated excise taxes or penalties) reasonably incurred or suffered by the Members such Person (individually, an “Indemnitee”), as follows (provided that no or one or more of such indemnification shall be available to a Member and its Affiliates in respect of any claim which is an indemnifiable claim against any of them pursuant to Section 12.2 or 12.3 of the Merger Agreement): (aPerson's Affiliates) In any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, to which an Indemnitee was or is a party or is threatened to be made a party by reason of the fact that such Indemnitee Person is or was a Member or an Affiliate of is or was serving as a Member (other than the Company and its subsidiaries) or a directorRepresentative, officer, employee, employee or constituent partner of a Member or an Affiliate of a Member (other than the Company and its subsidiaries), or a Manager, the Company shall indemnify such Indemnitee against attorneys’ fees, judgments, fines, penalties, settlements, and reasonable expenses actually incurred by such Indemnitee in connection with the defense or settlement of such action, suit or proceeding, if such Indemnitee acted in good faith, and in the case of the exercise of authority by the Indemnitee under the Delaware Act or this Agreement, other than service for another enterprise, in a manner reasonably believed by such Indemnitee to be in the best interests of the Company and, in all other cases, that the Indemnitee’s conduct was at least not opposed to the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, shall indemnification ever be made in relation to a proceeding in which the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful or intentional misconduct, in the Indemnitee’s performance of its duty to the Company or in relation to a proceeding which arises out of a material violation by the Indemnitee of the terms and provisions of this Agreement. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner reasonably believed by such Indemnitee to be in the best interests agent of the Company or not opposed is or was serving at the request of the Company as a representative, officer, director, principal, member, employee or agent of another partnership, corporation, joint venture, limited liability company, trust or other enterprise; provided that (unless the Board of Managers otherwise consents) no -------- ---- Indemnified Person shall be indemnified for any expenses, liabilities and losses suffered that are attributable to such Indemnified Person's or its Affiliates' gross negligence, willful misconduct or knowing violation of law, or for any present or future breaches of any representations, warranties or covenants by such Indemnified Person or its Affiliates contained herein or in any other agreement with the Company’s best interests, or for any Losses incurred by the Company. Expenses, including attorney fees, incurred by any such Indemnified Person in defending a proceeding shall be paid by the Company in advance of the final disposition of such proceeding, including any appeal therefrom, upon receipt of an undertaking by or on behalf of such Indemnified Person to repay such amount if it shall ultimately be determined that such Indemnified Person is not entitled to be indemnified by the Company. (b) Promptly after receipt by an Indemnitee The right to indemnification and the advancement of notice of the commencement expenses conferred in this Section 5.4 shall not be exclusive of any proceeding against it, such Indemnitee will, if a claim is to be made against the Company, give notice to the Company of the commencement of such claim, but the failure to notify the Company will not relieve the Company of other right which ----------- any liability that it Person may have to or hereafter acquire under any Indemniteestatute, except to the extent that the Company demonstrates that the defense agreement, by-law, vote of such action is prejudiced by the Indemnitee’s failure to give such noticeRepresentatives or otherwise. (c) If The Company may maintain insurance, at its expense, to protect any proceeding is brought Indemnified Person against an Indemnitee and it gives notice to any expense, liability or loss described in paragraph (a) above whether or not the Company would have the power to indemnify such Indemnified Person against such expense, liability or loss under the provisions of the commencement of such proceeding, the Company will, to the extent that it wishes (unless (i) the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation would be inappropriate, or (ii) the Company fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), assume the defense of such proceeding with counsel satisfactory to the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this section for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigationSection 5.4. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of such claims may be effected by the Company without the Indemnitee’s consent (which consent shall not be unreasonably withheld) unless (A) there is no finding or admission of any violation of legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Company and (ii) the Indemnitee will have no liability with respect to any compromise or settlement of such claims effected without its consent (which consent shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by the Indemnitee.----------- (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitee may, by notice anything contained herein to the Companycontrary (including in this Section 5.4), assume the exclusive right to defend, compromise, or settle such proceeding, but any indemnity by the Company will not relating to the ----------- matters covered in this Section 5.4 shall be bound provided out of and to the extent ----------- of Company assets only and no Member (unless such Member otherwise agrees in writing or is found in a final decision by any determination a court of a proceeding so defended competent jurisdiction to have personal liability on account thereof) shall have personal liability on account thereof or any compromise or settlement effected without its consent (which may not shall be unreasonably withheld)required to make additional Capital Contributions to help satisfy such indemnity of the Company. (e) Any indemnification permitted under If this Section 7.9 5.4 or any portion hereof shall be made only out invalidated on ----------- any ground by any court of the assets of competent jurisdiction, then the Company shall nevertheless indemnify and no Member shall be obligated hold harmless each Indemnified Person pursuant to contribute this Section 5.4 to the capital fullest extent permitted by any applicable portion of or loan funds to, the Company to enable the Company to provide such indemnification. (f) The indemnification provided by ----------- this Section 7.9 5.4 that shall be in addition to any other rights to which each Indemnitee may be entitled under any agreement or vote of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s capacity as a Member, as a director, officer, employee, or constituent partner of a Member, or as a Manager, not have been invalidated and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, administrators, and personal representatives of the Indemniteefullest extent ----------- permitted by applicable law. (g) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if approved by the Management Committee. (h) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. (i) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Persons.

Indemnification of Members. The Company shall indemnify and hold harmless the Members and their Affiliates (other than the Company and its subsidiaries), and their respective directors, officers, constituent partners, employees and advisors and other representatives, and the Managers designated by the Members (individually, an “Indemnitee”), as follows (provided that no such indemnification shall be available to a Member and its Affiliates in respect of any claim which is an indemnifiable claim against any of them pursuant to Section 12.2 or 12.3 of the Merger Agreement): (a) 7.2.1 In any threatened, pending, pending or completed action, suit, suit or proceeding, whether or other civil, criminal, administrativeinvestigative or administrative action, arbitrative, brought by or investigativein the name or right of the Company, to which an Indemnitee any Member was or is a party or is threatened to be made a party, the Company shall indemnify the Member against the expenses, including attorneys' fees, actually and reasonably incurred by the Member in connection with the defense or settlement of such action, suit or proceeding if such Member acted in good faith and in a manner the Member reasonably believed to be in or not opposed to the best interests of the Company; provided, however, that no indemnification shall be made in respect to any claim, issue or matter as to which the Member shall have been adjudged to be liable for fraud, gross negligence, breach of this Operating Agreement, willful or wanton misconduct, the receipt of a financial benefit which the Member is not entitled, the liability of a Member for a violation of Section 4308 of the Act, any act or omission occurring prior to the date of this Operating Agreement or breach of fiduciary obligation in the performance of any duty to the Company, or, with respect to any knowing violation of law or any criminal action or proceeding, where the Member had reasonable cause to believe the Member's conduct was unlawful, except to the extent that the court in which such action, suit or proceeding was brought shall determine upon application that, despite such adjudication of liability, in view of all circumstances of the case, the Member is fairly and reasonably entitled to indemnity for such expenses as such court shall deem proper. Any indemnification shall only be made from Company assets. 7.2.2 In any threatened, pending or completed action, suit or proceeding to which the Member was or is a party or is threatened to be made a party by reason of the fact that such Indemnitee the Member is or was a Member or an Affiliate of a Member the Company (other than an action by or in the right of the Company) involving an alleged cause of action for damages arising from the activities relative to management and disposition of the Company properties and its subsidiaries) or a director, officer, employee, or constituent partner of a Member or an Affiliate of a Member (other than the Company and its subsidiaries), or a Managerbusiness, the Company shall indemnify such Indemnitee the Members against expenses, including attorneys’ ' fees, judgmentsjudgments and amounts paid in settlement, fines, penalties, settlements, actually and reasonable expenses actually reasonably incurred by such Indemnitee him in connection with the defense or settlement of such action, suit or proceeding, proceeding if such Indemnitee the Member acted in good faith, faith and in the case of the exercise of authority by the Indemnitee under the Delaware Act or this Agreement, other than service for another enterprise, in a manner the Member reasonably believed by such Indemnitee to be in or not opposed to the best interests of the Company and, in all other cases, and provided that the Indemnitee’s Member's conduct was at least does not constitute fraud, gross negligence, breach of this Operating Agreement, willful or wanton misconduct, the receipt of a financial benefit which the Member is not entitled, the liability of a Member for a violation of Section 4308 of the Act, any act or omission occurring prior to the date of this Operating Agreement or a breach of any fiduciary obligation to the Company. The termination of any action, suit or proceeding by settlement shall not, of itself, create a presumption that the Member did not act in good faith and in a manner which the Member reasonably believed to be in or not opposed to the best interest of the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, Any indemnification shall indemnification ever only be made in relation to a proceeding in which the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful or intentional misconduct, in the Indemnitee’s performance of its duty to the from Company or in relation to a proceeding which arises out of a material violation by the Indemnitee of the terms and provisions of this Agreement. assets. 7.2.3 The termination of a any action, suit or proceeding by judgment, order, settlement, conviction, conviction or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not the act or omission was done fraudulently or in good faith and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company or not opposed to the Company’s best interests. (b) Promptly after receipt by an Indemnitee of notice of the commencement of any proceeding against it, such Indemnitee will, if a claim is to be made against the Company, give notice to the Company of the commencement of such claim, but the failure to notify the Company will not relieve the Company of any liability that it may have to any Indemnitee, except to the extent that the Company demonstrates that the defense of such action is prejudiced by the Indemnitee’s failure to give such notice. (c) If any proceeding is brought against an Indemnitee and it gives notice to the Company of the commencement of such proceeding, the Company will, to the extent that it wishes (unless (i) the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation would be inappropriatebad faith, or (ii) the Company fails to provide reasonable assurance to the Indemnitee as a result of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding)wanton or willful misconduct, assume the defense of such proceeding with counsel satisfactory to the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this section for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigation. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of such claims may be effected by the Company without the Indemnitee’s consent (which consent shall not be unreasonably withheld) unless (A) there is no finding or admission of any violation of legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Company and (ii) the Indemnitee will have no liability with respect to any compromise criminal action or settlement of such claims effected without its consent (which consent shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, that the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by person had reasonable cause to believe that the IndemniteeMember's conduct was unlawful. (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitee may, by notice to the Company, assume the exclusive right to defend, compromise, or settle such proceeding, but the Company will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). (e) Any indemnification permitted under this Section 7.9 shall be made only out of the assets of the Company and no Member shall be obligated to contribute to the capital of or loan funds to, the Company to enable the Company to provide such indemnification. (f) The indemnification provided by this Section 7.9 shall be in addition to any other rights to which each Indemnitee may be entitled under any agreement or vote of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s capacity as a Member, as a director, officer, employee, or constituent partner of a Member, or as a Manager, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, administrators, and personal representatives of the Indemnitee. (g) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if approved by the Management Committee. (h) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. (i) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Persons.

Indemnification of Members. The Company shall (a) Parent shall, to the extent permitted by law, indemnify and hold harmless each holder of the Members and Registrable Shares (including their Affiliates (other than the Company and its subsidiaries)officers, and their respective directors, officersAffiliates and partners) so registered (including any broker or dealer through whom such shares may be sold) and each Person, constituent partnersif any, employees who controls such holder within the meaning of Section 15 of the Securities Act from and advisors against any and other representativesall losses, and the Managers designated by the Members (individuallyclaims, an “Indemnitee”)damages, as follows (provided that no such indemnification shall be available expenses or liabilities, joint or several, to a Member and its Affiliates in respect of any claim which is an indemnifiable claim against they or any of them pursuant to Section 12.2 become subject under the Securities Act or 12.3 of the Merger Agreement): (a) In under any threatenedother statute or at common law or otherwise, pendingand, except as hereinafter provided, will reimburse each such holder and each such controlling Person, if any, for any legal or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, to which an Indemnitee was or is a party or is threatened to be made a party by reason of the fact that such Indemnitee is or was a Member or an Affiliate of a Member (other than the Company and its subsidiaries) or a director, officer, employee, or constituent partner of a Member or an Affiliate of a Member (other than the Company and its subsidiaries), or a Manager, the Company shall indemnify such Indemnitee against attorneys’ fees, judgments, fines, penalties, settlements, and reasonable expenses actually reasonably incurred by such Indemnitee them or any of them in connection with the defense investigating or settlement defending any actions whether or not resulting in any liability, insofar as such losses, claims, damages, expenses, liabilities or actions arise out of such action, suit or proceeding, if such Indemnitee acted in good faith, and in the case of the exercise of authority by the Indemnitee under the Delaware Act are based upon any untrue statement or this Agreement, other than service for another enterprise, in a manner reasonably believed by such Indemnitee to be in the best interests of the Company and, in all other cases, that the Indemnitee’s conduct was at least not opposed to the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, shall indemnification ever be made in relation to a proceeding in which the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful or intentional misconduct, in the Indemnitee’s performance of its duty to the Company or in relation to a proceeding which arises out alleged untrue statement of a material violation by fact contained in the Indemnitee registration statement or any related filing with any state securities commission or agency, in any preliminary or amended preliminary prospectus if a copy of the terms and provisions final prospectus was not sent or given by or on behalf of this Agreement. The termination such holder of Registrable Shares to the Person asserting any such losses, claims, damages, expenses, liabilities or actions or in the final prospectus (or the registration statement or prospectus as from time to time amended or supplemented by Parent) or arise out of or are based upon the omission or alleged omission to state therein a proceeding by judgmentmaterial fact required to be stated therein or necessary in order to make the statements therein not misleading, orderunless such untrue statement or alleged untrue statement or omission or alleged omission was made in such registration statement, settlement, conviction, preliminary or amended preliminary prospectus or final prospectus in reliance upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner reasonably believed conformity with information furnished in writing to Parent in connection therewith by such Indemnitee to be in the best interests holder of the Company Registrable Shares or not opposed to the Company’s best interestsany Person who controls such holder expressly for use therein. (b) In connection with any registration statement in which a holder of Registrable Shares is participating, such holder agrees, severally and not jointly, to indemnify and hold harmless Parent and each Person, if any, who controls Parent within the meaning of Section 15 of the Securities Act from and against any and all losses, claims, damages, expenses or liabilities, to which they or any of them become subject under the Securities Act or under any other statute or at common law or otherwise, and, except as hereinafter provided, will reimburse Parent and each such controlling Person, if any, for any legal or other expenses reasonably incurred by them or any of them in connection with investigating or defending any actions whether or not resulting in any liability, but only with reference to untrue statements or omissions or alleged untrue statements or omissions made in reliance upon information relating to such holder furnished to Parent in writing by such holder expressly for use in the registration statement or prospectus. The liability of any holder pursuant to this paragraph shall in no event exceed the net proceeds received by such holder from sales of Registrable Shares giving rise to such obligation. (c) Promptly after receipt by an Indemnitee any Person in respect of which indemnity may be sought pursuant to (a) or (b) above (the “Indemnified Person”) of notice of the commencement of any proceeding action in respect of which indemnity may be sought, the Indemnified Person will notify the Person against it, whom such Indemnitee will, if a claim is to indemnity may be made against sought (the Company, give notice to the Company “Indemnifying Person”) in writing of the commencement of such claimthereof, but the failure to notify the Company will not relieve the Company of any liability that it may have to any Indemniteeand, except subject to the extent that provisions hereinafter stated, the Company demonstrates that Indemnifying Person shall assume the defense of such action is prejudiced by (including the Indemnitee’s failure employment of counsel, who shall be counsel reasonably satisfactory to give the Indemnified Person, and the payment of expenses insofar as such noticeaction shall relate to any alleged liability in respect of which indemnity may be sought against the Indemnifying Person. (cd) If Any Indemnified Person shall have the right to employ separate counsel in any proceeding is brought against an Indemnitee such action and it gives notice to participate in the Company defense thereof but the fees and expenses of such counsel shall not be at the expense of the commencement Indemnifying Person unless the employment of such proceedingcounsel has been specifically authorized by the Indemnifying Person; provided, however, that the Company will, to Indemnifying Person shall pay such expense if representation of such Indemnified Person by the extent that it wishes (unless (i) counsel retained by the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation Indemnifying Person would be inappropriate, inappropriate due to actual or (ii) potential differing interests between the Company fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend Indemnified Person and any other party represented by such proceeding and provide indemnification with respect to counsel in such proceeding); provided, assume further, that in no event shall the defense Indemnifying Person be required to pay the expenses of such proceeding with more than one law firm as counsel satisfactory to for the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, Indemnified Person. The Indemnifying Person shall not be liable to the Indemnitee under this section indemnify any Person for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigation. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of any such claims may be action effected by the Company without the IndemniteeIndemnifying Person’s consent (which consent shall not be unreasonably withheld) unless (A) there is no finding withheld or admission delayed). The Indemnifying Person shall not, except with the approval of the Indemnified Person, consent to entry of any violation of legal requirements judgment or enter into any violation of settlement which does not include as an unconditional term thereof the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full giving by the Company and (ii) claimant or plaintiff to the Indemnitee will have no parties being so indemnified of a release from all liability with in respect to any compromise such claim or settlement of such claims effected without its consent (which consent shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by the Indemnitee. (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitee may, by notice to the Company, assume the exclusive right to defend, compromise, or settle such proceeding, but the Company will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld)litigation. (e) Any indemnification permitted In order to provide for just and equitable contribution to joint liability under the Securities Act in any case in which any holder of Registrable Shares exercising rights under this Section 7.9 shall be made only out Agreement, or any controlling person of any such holder, makes a claim for indemnification pursuant hereto but it is judicially determined (by the entry of a final judgment or decree by a court of competent jurisdiction and the expiration of time to appeal or the denial of the assets last right of appeal) that such indemnification may not be enforced in such case notwithstanding the Company fact that this provision provides for indemnification in such case, then, Parent and no Member shall be obligated to such holder will contribute to the capital aggregate losses, claims, damages or liabilities to which they may be subject (after contribution from others) in such proportion as is appropriate to reflect the relative fault of Parent on the one hand and of the holder of Registrable Shares on the other in connection with the statements or loan funds toomissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative fault of Parent on the Company to enable one hand and of the Company to provide such indemnification. (f) The indemnification provided by this Section 7.9 holder of Registrable Shares on the other shall be determined, among other things, by reference to whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by Parent on the one hand or expressly for use in addition the registration statement or prospectus in question by the holder of Registrable Shares on the other, and each party’s relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission; provided, however, that, in any other rights such case, (A) no such holder will be required to which each Indemnitee may contribute any amount in excess of the net proceeds received by it from the sale of such Registrable Shares offered by it pursuant to such registration statement; and (B) no person or entity guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) will be entitled under to contribution from any agreement person or vote entity who was not guilty of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s capacity as a Member, as a director, officer, employee, or constituent partner of a Member, or as a Manager, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, administrators, and personal representatives of the Indemniteefraudulent misrepresentation. (g) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if approved by the Management Committee. (h) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. (i) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Persons.

Indemnification of Members. The Company shall will indemnify and hold harmless the Members and their Affiliates (other than Manager, the Company and its subsidiaries)Members, and their respective the directors, officers, constituent partners, and employees and advisors and other representativesof the Manager or the Members, and the Managers designated by members of the Members Board (individually, an “"Indemnitee”"), as follows (provided that no such indemnification shall be available to a Member and its Affiliates in respect of any claim which is an indemnifiable claim against any of them pursuant to Section 12.2 or 12.3 of the Merger Agreement):follows: (a) In any threatened, pending, pending or completed action, suit, suit or proceeding, whether civil, criminal, administrative, arbitrative, or investigative, to which an Indemnitee was or is a party or is threatened to be made a party by reason of any act performed or omitted to be performed in the fact that such Indemnitee is name of or was a Member or an Affiliate on behalf of a Member (other than the Company and its subsidiaries) or a director, officer, employee, or constituent partner of a Member or an Affiliate of a Member (other than in connection with the Company and its subsidiaries), or a ManagerCompany's business, the Company shall will indemnify such Indemnitee against attorneys’ ' fees, judgments, fines, penalties, including excise and similar taxes, settlements, and reasonable expenses actually incurred by such Indemnitee in connection with the defense or settlement of such action, suit suit, or 17 proceeding, if such Indemnitee acted in all cases in good faith, within such Indernnitee's scope of authority, without gross negligence of willful misconduct, and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company, and in the case of the exercise of authority by the Indemnitee under the Delaware Act or this Agreement, other than service for another enterprise, in a manner reasonably believed by such Indemnitee to be in the best interests of the Company and, in all other cases, that the Indemnitee’s conduct was at least not opposed to the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, shall will indemnification ever be made in relation to a proceeding in which between the Members, to the extent that the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful grossly negligent, willful, or intentional misconduct, misconduct in the Indemnitee’s 's performance of its duty to the Company or in relation to a proceeding which arises out of the extent that the Indemnitee has committed a material violation by the Indemnitee of the terms and provisions of this Agreement. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company or not opposed to the Company’s best interests. (b) Promptly after receipt If a claim or assertion of liability is made or asserted by a third party against an Indemnitee, which, if prevailed upon by any such third party, would result in such Indemnitee of being entitled to indemnification pursuant to this Section 7.9, the Indemnitee will forthwith give to the Company written notice of the commencement claims or assertion of any proceeding against it, such Indemnitee will, if a claim is to be made against the Company, give notice to liability and request the Company of to defend the commencement of such claim, but the failure same. Failure to so notify the Company will not relieve the Company of any liability that it may which the Company might have to any Indemnitee, the Indemnitee except to the extent that such failure actually prejudices the Company's position. The Company will have the right and the obligation to defend against such claim or assertion (only if the Indemnitee is entitled to indemnification pursuant to this Section 7.9), and the Company demonstrates that will give written notice to the Indemnitee of acceptance of the defense of such action is prejudiced claim and the name of the counsel selected by the Indemnitee’s failure Company to give defend such noticeclaim. The Indemnitee will be entitled to participate with the Company in such defense and also will be entitled at its option (and at its own expense) to employ separate counsel for such defense. (c) If any proceeding is brought against an Indemnitee and it gives notice to the Company of the commencement of such proceeding, the Company will, to the extent that it wishes (unless (i) the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation would be inappropriate, or (ii) the Company fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), assume the defense of such proceeding with counsel satisfactory to the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this section for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigation. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of such claims may be effected by the Company without the Indemnitee’s consent (which consent shall not be unreasonably withheld) unless (A) there is no finding or admission of any violation of legal requirements or any violation of the rights of any Person and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full by the Company and (ii) the No Indemnitee will have no liability with respect to any compromise or settlement of such claims effected without its consent (which consent shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by the Indemnitee. (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this AgreementSection 7.9 if it has entered into any settlement or compromise of any claim giving rise to any indenifiable loss without the written consent of the Company. If a bona fide settlement offer is made with respect to a claim and the Company desires to accept and agree to such offer, the Indemnitee may, by Company will give notice to the CompanyIndemnitee to that effect (the "Settlement Notice"). If the Indemnitee fails to consent to the settlement offer within ten (10) calendar days after receipt of the Settlement Notice, assume then the exclusive right Indenitee will be deemed to defendhave rejected such settlement offer and will be responsible for continuing the defense of such claim and, compromisein such event, or settle such proceeding, but the maximum liability of the Company as to such claim will not be bound exceed the amount of such settlement offer plus any and all reasonable costs and expenses paid or incurred by any determination the Indemnitee up to the date of a proceeding so defended or any compromise or settlement effected without its consent (the Settlement Notice and which may not be unreasonably withheld)are otherwise the responsibility of the Company pursuant to this Section 7.9. (ed) Any indemnification permitted under this Section 7.9 shall will be made only out of the assets of the Company and no Member shall will be obligated to contribute to the capital of of, or loan funds to, the Company to enable the Company to provide such indemnification. (fe) The indemnification provided by this Section 7.9 shall will be in addition to any other rights to which each Indemnitee may be entitled under any agreement or vote of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s 's capacity as a the Manager, Member, as a director, officer, employee, or constituent partner employee of a Memberthe Manager or the Members, or as a Managermember of the Board, and shall will continue as to an Indemnitee who has ceased to serve in such capacity and shall will inure to the benefit of the heirs, successors, assigns, administrators, administrators and personal representatives of the Indemnitee. (gf) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if the purchase of such insurance has been unanimously approved by the Management CommitteeMembers. (hg) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. In addition, the Members acknowledge and agree that the Members, and the officers, directors, and employees of the Members, are listed as Indemnitees pursuant to this Section 7.9 because of the possibility that such Persons, in their capacity as Members (or officers, directors, or employees thereof), may be named as a defendant in any suit involving the Company or its activities. (ih) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall will not be deemed to create any rights for the benefit of any other Persons.

Indemnification of Members. The Company shall To the extent permitted by law, New Horizons will indemnify and hold harmless the Members and their Affiliates (other than the Company and its subsidiaries), and their respective directors, officers, constituent partners, employees and advisors and other representatives, and the Managers designated by Seller and/or the Members (individually, an “Indemnitee”), as follows (provided that no such indemnification shall be available to a Member and its Affiliates requesting or joining in respect of any claim which is an indemnifiable claim the Registration Statement against any of them pursuant to Section 12.2 losses, claims, damages or 12.3 of the Merger Agreement): (a) In any threatenedliabilities, pending, joint or completed action, suit, or proceeding, whether civil, criminal, administrative, arbitrative, or investigativeseveral, to which an Indemnitee was they may become subject under the Act or is otherwise, insofar as such losses, claims, damages or liabilities (or actions in respect thereof) arise out of or are based on any untrue or alleged untrue statement of any material fact contained in such Registration Statement, including any prospectus contained therein or any amendments or supplements thereto, or arise out of or are based upon the omission or alleged omission to state therein a party or is threatened material fact required to be made a party by reason of the fact that such Indemnitee is or was a Member or an Affiliate of a Member (other than the Company and its subsidiaries) or a director, officer, employeestated therein, or constituent partner of a Member or an Affiliate of a Member (other than necessary to make the Company and its subsidiaries)statements therein not misleading, or a Manager, arise out of any violation by New Horizons of any rule or regulation promulgated under the Company shall indemnify such Indemnitee against attorneys’ fees, judgments, fines, penalties, settlements, Act applicable to New Horizons and reasonable expenses actually incurred relating to action or inaction required by such Indemnitee New Horizons in connection with any such registration; and will reimburse the defense Seller and/or the Members for any legal or settlement of other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, liability or action; provided, suit or proceeding, if such Indemnitee acted in good faith, and in the case of the exercise of authority by the Indemnitee under the Delaware Act or this Agreement, other than service for another enterprise, in a manner reasonably believed by such Indemnitee to be in the best interests of the Company and, in all other caseshowever, that the Indemnitee’s conduct was at least indemnity agreement contained in this Subsection 11.7.1 shall not opposed apply to the Company’s best interests, and with respect to any criminal action or proceeding, the Indemnitee did not have reasonable cause to believe that his conduct was unlawful. In no event, however, shall indemnification ever be made amounts paid in relation to a proceeding in which the Indemnitee has been found liable for fraud or a criminal act or for gross negligence or willful or intentional misconduct, in the Indemnitee’s performance of its duty to the Company or in relation to a proceeding which arises out of a material violation by the Indemnitee of the terms and provisions of this Agreement. The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere, or its equivalent, shall not, of itself, create a presumption that an Indemnitee did not act in good faith and in a manner reasonably believed by such Indemnitee to be in the best interests of the Company or not opposed to the Company’s best interests. (b) Promptly after receipt by an Indemnitee of notice of the commencement settlement of any proceeding against itsuch loss, such Indemnitee will, if a claim is to be made against the Company, give notice to the Company of the commencement of such claim, but the failure to notify the Company will not relieve the Company of any damage, liability that it may have to any Indemnitee, except to the extent that the Company demonstrates that the defense of or action if such action settlement is prejudiced by the Indemnitee’s failure to give such notice. (c) If any proceeding is brought against an Indemnitee and it gives notice to the Company of the commencement of such proceeding, the Company will, to the extent that it wishes (unless (i) the Company is also a party to such proceeding and the Indemnitee determines in good faith that joint representation would be inappropriate, or (ii) the Company fails to provide reasonable assurance to the Indemnitee of its financial capacity to defend such proceeding and provide indemnification with respect to such proceeding), assume the defense of such proceeding with counsel satisfactory to the Indemnitee and, after notice from the Company to the Indemnitee of its election to assume the defense of such proceeding and an acknowledgment of its indemnification obligation with respect thereto, the Company will not, as long as it diligently conducts such defense, be liable to the Indemnitee under this section for any fees of other counsel or any other expenses with respect to the defense of such proceeding, in each case subsequently incurred by the Indemnitee in connection with the defense of such proceeding, other than reasonable costs of investigation. If the Company assumes the defense of a proceeding in accordance with the preceding sentence, (i) no compromise or settlement of such claims may be effected by the Company without the Indemnitee’s consent of New Horizons (which consent shall not be unreasonably withheld) unless (A) there nor shall New Horizons be liable in any such case for any such loss, claim, damage, liability or action to the extent that it arises out of or is no finding based upon an untrue statement or admission of alleged untrue statement or omission or alleged omission made in connection with such registration statement, any violation of legal requirements prospectus, or any violation of the rights of any Person amendments or supplements thereto, in reliance upon and no effect on any other claims that may be made against the Indemnitee, and (B) the sole relief provided is monetary damages that are paid in full conformity with written information furnished expressly for use in connection with such registration by the Company and (ii) Seller and/or the Indemnitee will have Members. It is expressly understood among the parties to this Agreement that in no liability with respect to any compromise or settlement of such claims effected without its consent (which consent event shall not be unreasonably withheld). If notice is given to the Company of the commencement of any proceeding and the Company does not, within 20 days after the Indemnitee’s notice is given, give notice to the Indemnitee of its election to assume the defense of such proceeding, the Company will be bound by any determination made in such proceeding or any compromise or settlement reasonably effected by the Indemnitee. (d) Notwithstanding the foregoing, if an Indemnitee determines in good faith that there is a reasonable probability that a proceeding may adversely affect it or its Affiliates other than as a result of monetary damages for which it would be entitled to indemnification under this Agreement, the Indemnitee may, by notice to the Company, assume the exclusive right to defend, compromise, or settle such proceeding, but the Company will not be bound by any determination of a proceeding so defended or any compromise or settlement effected without its consent (which may not be unreasonably withheld). (e) Any indemnification permitted under this Section 7.9 shall be made only out of the assets of the Company and no Member shall New Horizons be obligated to contribute agree to indemnify, in any respect, any underwriter, broker, dealer or other entity or person effecting the capital of sale, purchasing or loan funds to, the Company to enable the Company to provide such indemnification. (f) The indemnification provided by this Section 7.9 shall be in addition to otherwise distributing any other rights to which each Indemnitee may be entitled under any agreement or vote of the Members, as a matter of law or otherwise, as to action in the Indemnitee’s capacity as a Member, as a director, officer, employee, or constituent partner of a Member, or as a Manager, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns, administrators, and personal representatives of the IndemniteeNew Horizons Stock. (g) The Company may purchase and maintain insurance on behalf of any one or more Indemnitees if approved by the Management Committee. (h) In no event may an Indemnitee subject a Member to personal liability by reason of the indemnification provisions of this Agreement. (i) The provisions of this Section 7.9 are for the benefit of the Indemnitees and the heirs, successors, assigns, administrators, and personal representatives of the Indemnitees and shall not be deemed to create any rights for the benefit of any other Persons.