Common use of Member Exculpation and Indemnification Clause in Contracts

Member Exculpation and Indemnification. (a) None of the Managing Member, the Members or their respective Related Persons or any Related Person of the Company shall have any liability, responsibility or accountability in damages or otherwise to the Managing Member, any Member or the Company for, and the Company agrees to indemnify, pay, protect and hold harmless the Managing Member, the Members and their respective Related Persons and the Related Persons of the Company (collectively, the “Indemnified Parties”) from and against, any and all Damages which may be imposed on, incurred by, or asserted against the Indemnified Parties in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, on the part of the Indemnified Parties when acting on behalf of the Company or on the part of any brokers or agents when acting on behalf of the Company; provided, that a Member shall be liable, responsible and accountable for and shall indemnify and hold the Company harmless against, and the Company shall not be liable to a Member for, any portion of such Damages in connection therewith resulting from acts or omissions of such Member or Related Person which (x) were taken or omitted in bad faith or in breach of its fiduciary duties pursuant to the terms of this Agreement or (y) constituted intentional misconduct, fraud or gross negligence; provided, however, that such Member’s obligation to indemnify the Company hereunder as provided above shall be satisfied solely from (i) such Member’s interest in the Company, (ii) all distributions due such Member from the Company from the date of assertion of such claim for indemnification and (iii) any fidelity bond or insurance maintained by such Member in respect of the foregoing; and provided further, that nothing in this provision shall create personal liability on the part of any Member’s Related Persons. In any action, suit or proceeding against the Company or any Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the Indemnified Parties shall have the right to jointly employ, at the expense of the Company, counsel of the Indemnified Parties’ choice, which counsel shall be reasonably satisfactory to the Company, in such action, suit or proceeding, provided that if retention of joint counsel by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense of the Company, separate counsel of the Indemnified Party’s choice, which counsel shall be reasonably satisfactory to the Company, in such action, suit or proceeding. The satisfaction of the obligations of the Company under this Section 8.1(a) shall be from and limited to the assets of the Company and no Member shall have any personal liability on account thereof. Accordingly, with the intent that this Agreement and the contractual obligations set forth herein serve as the sole basis of establishing the governance obligations of the Members, the Managing Member, the Members and the Company agree that to the fullest extent permitted by the Act, fiduciary duties of Members are hereby eliminated, and implied covenants (other than the implied contractual covenant of good faith and fair dealing and the duty of loyalty) and other standards of conduct that are not expressly provided in this Agreement shall not apply and are hereby waived. (b) The provision of advances from the Company funds to an Indemnified Party for legal expenses and other costs incurred as a result of any legal action or proceeding is permissible if (i) such suit, action or proceeding relates to or arises out of, or is alleged to relate to or arise out of, any action or inaction on the part of the Indemnified Party in the performance of its duties or provision of its services on behalf of the Company; and (ii) the Indemnified Party undertakes to repay any funds advanced pursuant to this Section 8.1(b) in cases in which such Indemnified Party would not be entitled to indemnification under Section 8.1(a). If advances are permissible under this Section 8.1(b), the Indemnified Party shall furnish the Company with an undertaking as set forth in clause (ii) of this paragraph and shall thereafter have the right to xxxx the Company for, or otherwise request the Company to pay, at any time and from time to time after such Indemnified Party shall become obligated to make payment therefor, any and all reasonable amounts for which such Indemnified Party is entitled to indemnification under Section 8.1(a). The Company shall pay any and all such bills and honor any and all such requests for payment within 60 days after such xxxx or request is received by the Members and the Company’s rights to repayment of such amounts shall be secured by the Indemnified Party’s interest in the Company. In the event that a final determination is made that the Company is not so obligated in respect of any amount paid by it to a particular Indemnified Party, such Indemnified Party will refund such amount within 60 days of such final determination, and in the event that a final determination is made that the Company is so obligated in respect to any amount not paid by the Company to a particular Indemnified Party, the Company will pay such amount to such Indemnified Party within 60 days of such final determination, in either case together with interest at the Prime Rate plus 2% from the date paid until repaid or the date it was obligated to be paid until the date actually paid.

Member Exculpation and Indemnification. (ai) None of the Managing No Member, the Members or their respective Related Persons its affiliates or any Related Person of the Company shall have any liabilitytheir current or former officers, responsibility directors, trustees, members, employees, representatives, attorneys or accountability in damages or otherwise to the Managing Member, any Member or the Company for, and the Company agrees to indemnify, pay, protect and hold harmless the Managing Member, the Members and their respective Related Persons and the Related Persons of the Company agents (collectively, the “Member Indemnified Parties”) from and against, any and all Damages which may be imposed on, incurred by, or asserted against the Indemnified Parties in any way relating to or arising out of, or alleged to relate to or arise out of, any action or inaction on the part of the Company, on the part of the Indemnified Parties when acting on behalf of the Company or on the part of any brokers or agents when acting on behalf of the Company; provided, that a Member shall be liable, responsible and accountable for and shall indemnify and hold the Company harmless against, and the Company shall not be liable to each individually, a “Member forIndemnified Party”) shall, any portion by virtue of such Damages in connection therewith resulting from acts or omissions of such Member or Related Person which (x) were taken or omitted in bad faith or in breach of its fiduciary duties pursuant to the terms of this Agreement or (y) constituted intentional misconduct, fraud or gross negligence; provided, however, that such Member’s obligation status as a Member, have any liability to indemnify any other person under the Company Certificate of Formation, this Operating Agreement or any applicable law, except liability to Odonate Holdings, the other Members and the tax matters partner in respect of obligations expressly arising hereunder as provided above shall be satisfied solely from (i) such Member’s interest in the Company, or required by law. (ii) all distributions due No Member shall in any event have any liability whatsoever (except as expressly required by the Act) in excess of the following (without duplication): (A) the amount of any Capital Contribution previously made by such Member; (B) its share of any assets and undistributed profits of Odonate Holdings; and (C) the amount of any wrongful distribution to such Member, if, and only to the extent, such Member from had actual knowledge (at the Company from time of the date distribution) that such distribution was made in violation of assertion of such claim for indemnification and the Act or this Operating Agreement. (iii) To the fullest extent permitted by law, in any fidelity bond threatened, pending or insurance maintained by such Member in respect of the foregoing; and provided further, that nothing in this provision shall create personal liability on the part of any Member’s Related Persons. In any completed action, suit or proceeding against the Company brought by a person other than a Member, an affiliate of a Member or any Odonate Holdings, each Member Indemnified Party relating to or arising, or alleged to relate to or arise, out of any such action or non-action, the Indemnified Parties shall have the right to jointly employ, at the expense of the Company, counsel of the Indemnified Parties’ choice, which counsel shall be reasonably satisfactory to the Company, fully protected and indemnified and held harmless by Odonate Holdings against all Damages actually incurred by such Member Indemnified Party in connection with such action, suit or proceeding, provided that if retention of joint counsel proceeding by the Indemnified Parties would create a conflict of interest, each group of Indemnified Parties which would not cause such a conflict shall have the right to employ, at the expense virtue of the Company, separate counsel of relevant Member’s status as a Member or with respect to any action or omission taken or suffered in good faith by it in connection with the Indemnified Partyrelevant Member’s choice, which counsel shall be reasonably satisfactory to the Company, in such action, suit or proceedingstatus as a Member. The satisfaction of the obligations of the Company under this Section 8.1(a) shall be from and limited to the assets of the Company and no Member shall have any personal liability on account thereof. Accordingly, with the intent that this Agreement and the contractual obligations set forth herein serve as the sole basis of establishing the governance obligations of the Members, the Managing Member, the Members and the Company agree that to the fullest extent permitted by the Act, fiduciary duties of Members are hereby eliminated, and implied covenants (other than the implied contractual covenant of good faith and fair dealing and the duty of loyalty) and other standards of conduct that are not expressly provided in this Agreement preceding sentence shall not apply and are hereby waived. (b) The provision of advances to Damages resulting from the Company funds to an bad faith, fraud or willful misconduct of such Member Indemnified Party for legal Party. “Damages” means any liabilities, obligations, losses, damages, penalties, actions, judgments, suits, proceedings, costs, expenses and other costs incurred as a result disbursements of any legal action kind or proceeding is permissible if nature whatsoever (i) such suitincluding reasonable attorneys’ fees, action or proceeding relates to or arises out ofcosts of investigation, or is alleged to relate to or arise out offines, any action or inaction on the part of the Indemnified Party judgments and amounts paid in the performance of its duties or provision of its services on behalf of the Company; and (ii) the Indemnified Party undertakes to repay any funds advanced pursuant to this Section 8.1(b) in cases in which such Indemnified Party would not be entitled to indemnification under Section 8.1(asettlement). If advances are permissible under this Section 8.1(b), the Indemnified Party shall furnish the Company with an undertaking as set forth in clause (ii) of this paragraph and shall thereafter have the right to xxxx the Company for, or otherwise request the Company to pay, at any time and from time to time after such Indemnified Party shall become obligated to make payment therefor, any and all reasonable amounts for which such Indemnified Party is entitled to indemnification under Section 8.1(a). The Company shall pay any and all such bills and honor any and all such requests for payment within 60 days after such xxxx or request is received by the Members and the Company’s rights to repayment of such amounts shall be secured by the Indemnified Party’s interest in the Company. In the event that a final determination is made that the Company is not so obligated in respect of any amount paid by it to a particular Indemnified Party, such Indemnified Party will refund such amount within 60 days of such final determination, and in the event that a final determination is made that the Company is so obligated in respect to any amount not paid by the Company to a particular Indemnified Party, the Company will pay such amount to such Indemnified Party within 60 days of such final determination, in either case together with interest at the Prime Rate plus 2% from the date paid until repaid or the date it was obligated to be paid until the date actually paid.