Common use of Officers' and Directors' Insurance; Indemnification Clause in Contracts

Officers' and Directors' Insurance; Indemnification. It is understood and agreed that the Company shall indemnify and hold harmless and, after the Effective Time, the Surviving Corporation will indemnify and hold harmless, each present and former member of the Board of Governors and officer of the Company, and each director and officer of the Attorney-in-Fact (the "Indemnified Parties") to the full extent permitted by applicable law against any losses, claims, damages, liabilities, costs, expenses, judgments and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to any action or omission which arises out of or relates to the transactions contemplated by this Plan, and the Company and the Surviving Corporation, as the case may be, will advance expenses to each such person upon receipt of an undertaking to: (i) repay such amount if it shall be determined ultimately that such person is not entitled to indemnification under the applicable law; and (ii) reasonably cooperate with the Company (of, after the Effective Time, the Surviving Corporation) concerning the action, suit, proceeding or investigation. In the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising before or after the Effective Time), (a) the Indemnified Parties may retain counsel satisfactory to them and the Company (or them and the Surviving Corporation after the Effective Time), (b) the Company (or after the Effective Time, the Surviving Corporation) shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (c) the Company (or after the Effective Time, the Surviving Corporation) will use its best efforts to assist in the vigorous defense of any such matter, provided, that neither the Company nor the Surviving Corporation shall be liable for any such settlement effected without their written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.3, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company or the Surviving Corporation thereof and shall deliver to the Company or the Surviving Corporation an undertaking to repay any amounts advanced pursuant hereto when and if a court of competent jurisdiction shall ultimately determine, after exhaustion of all avenues of appeal, that such Indemnified Party was not entitled to indemnification under this Section. In addition, upon the occurrence of the Effective Time, New Insurer shall be deemed expressly to have assumed any obligations of the Company to its directors and officers for indemnification, whether under the Company's Bylaws or the Subscription Agreements, or otherwise, for acts or occurrences prior to the Effective Time. This Section 6.3 shall survive the consummation of the Merger. 6.4

Officers' and Directors' Insurance; Indemnification. It is understood and agreed that the (a) The Company shall indemnify and hold harmless harmless, and, after the Effective TimeDate, the Surviving Corporation will and the Parent shall indemnify and hold harmless, each present and former member of the Board of Governors and officer of the Company, and each director and officer of the Attorney-in-Fact Company (the "Indemnified Parties") to the full extent permitted by applicable law against any lossesexpenses (including attorneys' fees), claimsjudgments, damages, liabilities, costs, expenses, judgments fines and amounts paid in settlement actually and reasonably incurred by such Indemnified Party in connection with any claimthreatened, pending or completed action, suitsuit or proceeding, proceeding whether civil, criminal, administrative or investigation arising investigative to which such Indemnified Party was made, or threatened to be made, a party by reason of the fact that such Indemnified Party was or is a director, officer, employee or agent of the Company, or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture trust or other enterprise and which arises out of or pertaining pertains to any action or omission occurring prior to the Effective Date (including, without limitation, any which arises arise out of or relates relate to the transactions contemplated by this Plan, Agreement) to the full extent permitted under the Delaware Law (and the Company or the Surviving Corporation and the Surviving CorporationParent, as the case may be, will advance expenses to each such person upon receipt of to the full extent so permitted); provided, that any determination required to be made with respect to whether an undertaking to: (i) repay such amount if it Indemnified Party's conduct complied with the standards set forth in the Delaware Law shall be determined ultimately that made by independent counsel selected by such person is not entitled Indemnified Party and reasonably satisfactory to indemnification under the applicable law; and (ii) reasonably cooperate with the Company (of, after the Effective Time, or the Surviving Corporation) concerning Corporation and the actionParent, suit, proceeding or investigationas the case may be (which shall pay such counsel's fees and expenses). In the event any such claim, action, suit, proceeding or investigation is if brought against any Indemnified Party (whether arising before or after the Effective TimeDate), (a) the Indemnified Parties may retain counsel satisfactory to them and the Company (or them the Parent and the Surviving Corporation after the Effective Time)Date) shall retain counsel for the Indemnified Parties reasonably satisfactory to them, (b) the Company (or the Surviving Corporation and the Parent after the Effective Time, the Surviving CorporationDate) shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (c) the Company (or the Surviving Corporation and the Parent after the Effective Time, the Surviving CorporationDate) will use its reasonable best efforts to assist in the vigorous defense of any such matter, provided, that neither the Company nor Company, the Surviving Corporation nor the Parent shall be liable for any such settlement effected without their written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.37.2, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company or the Surviving Corporation or the Parent thereof and shall deliver to the Company or the Surviving Corporation or the Parent an undertaking to repay any amounts advanced pursuant hereto when and if in the event a court of competent jurisdiction shall ultimately determine, after exhaustion of all avenues of appeal, that such Indemnified Party was not entitled to indemnification under this Section. In addition, upon the occurrence of (b) For five years after the Effective TimeDate, New Insurer the Surviving Corporation and the Parent shall be deemed expressly use their respective reasonable best efforts to have assumed any obligations of the Company to its directors provide officers' and officers directors' liability insurance for indemnification, whether under the Company's Bylaws or the Subscription Agreements, or otherwise, for acts or occurrences events occurring prior to the Effective Time. This Section 6.3 Time covering the Indemnified Parties who are currently covered by the Company's officers' and directors' liability insurance policy (a copy of which has heretofore been delivered to the Parent) on terms no less favorable than those of such policy in terms of coverage and amounts or, if substantially similar insurance coverage is unavailable, the best available coverage; provided, however, that the Surviving Corporation shall survive the consummation not be required to pay a per annum amount of premiums for such officers' and directors' insurance in excess of 200 percent of the Mergerlast per annum amount of premiums incurred prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount. 6.4The Company represents and warrants that the last per annum amount of such premiums incurred by the Company is approximately $280,000.

Officers' and Directors' Insurance; Indemnification. It is understood and agreed that Company shall, to the Company shall fullest extent permitted under applicable laws, indemnify and hold harmless harmless, and, after the Effective TimeDate, Parent and the Surviving Corporation will shall, to the fullest extent permitted under applicable laws, indemnify and hold harmless, each present and former member of the Board of Governors and officer of the Company, and each director and officer of the Attorney-in-Fact Company (the "Indemnified Parties") to the full extent permitted by applicable law against any losses, claims, damages, liabilities, costs, expenses, judgments and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to any action or omission by such director or officer prior to the Effective Date in his/her capacity as such (including, without limitation, any claims, actions, suits, proceedings or investigations which arises arise out of or relates relate to the transactions contemplated by this PlanAgreement; provided, and however, that neither Company, Parent nor Surviving Corporation shall have any obligation under this Section to indemnify any Indemnified Party hereunder against any losses, claims, damages, liabilities, costs, expenses, judgments or amounts to the Company and extent the Surviving Corporation, as the case may be, will advance expenses same is found to each have resulted from such person upon receipt of an undertaking to: (i) repay such amount if it shall be determined ultimately that such person is not entitled to indemnification under the applicable law; and (ii) reasonably cooperate with the Company (of, after the Effective Time, the Surviving Corporation) concerning the action, suit, proceeding Indemnified Person's own gross negligence or investigationwillful misconduct. In the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising before or after the Effective TimeDate), (a) the Indemnified Parties may retain counsel satisfactory to them and the Company (or them and the Surviving Corporation and Parent after the Effective TimeDate), (b) the Company (or after the Effective TimeDate, the Surviving CorporationCorporation and Parent) shall pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (c) the Company (or after the Effective TimeDate, the Surviving CorporationCorporation and Parent) will use its best their respective reasonable efforts to assist in the vigorous defense of any such matter, provided, that neither the Company nor Company, the Surviving Corporation nor Parent shall be liable for any such settlement effected without their written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.36.9, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company or Company, the Surviving Corporation or Parent thereof and shall deliver to the Company or the Surviving Corporation an undertaking to repay any amounts advanced pursuant hereto when and if a court of competent jurisdiction shall ultimately determine, after exhaustion of all avenues of appeal, that such Indemnified Party was not entitled to indemnification under this Section. In additionThe Indemnified Parties as a group may retain only one law firm in each jurisdiction to represent them with respect to any such matter unless there is, upon under applicable standards of professional conduct as determined by such counsel, a conflict on any significant issue between the occurrence positions of the Effective Time, New Insurer shall be deemed expressly to have assumed any obligations of the Company to its directors and officers for indemnification, whether under the Company's Bylaws two or the Subscription Agreements, or otherwise, for acts or occurrences prior to the Effective Timemore Indemnified Parties. This Section 6.3 6.9 shall survive the consummation of the Merger. 6.4The Certificate of Incorporation and Bylaws of Company will not be amended in a manner which adversely affects the rights of the Indemnified Parties under this Section 6.9. Nothing contained herein shall in any way limit the rights of any director or officer under any indemnification agreement or charter or Bylaw provision of Company existing on the date hereof.

Officers' and Directors' Insurance; Indemnification. (a) It is understood and agreed that the Company shall indemnify and hold harmless harmless, and, after the Effective Time, the Surviving Corporation will shall, and, so long as the Surviving Corporation or any of its successors and assigns is an affiliate of Parent, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless, each present and former member of the Board of Governors and officer of the Company, and each director and officer of the Attorney-in-Fact Company or any of its Subsidiaries (the "Indemnified Parties") to the full extent permitted by applicable law against any losses, claims, damages, liabilities, costs, expensesexpenses (including attorneys fees), judgments and amounts paid in settlement in connection with any threatened, pending or completed claim, action, suit, proceeding or investigation investigation, whether civil, criminal, administrative or investigative (collectively, "Claims"), arising out of or pertaining to any action or omission or alleged action or omission occurring on or prior to the Effective Time and based in whole or in part on the fact that such person is or was such a director or officer (including, without limitation, any Claims which arises arise out of or relates relate to the transactions contemplated by this Plan, and the Company and the Surviving Corporation, as the case may be, will advance expenses Agreement) whether asserted or commenced prior to each such person upon receipt of an undertaking to: (i) repay such amount if it shall be determined ultimately that such person is not entitled to indemnification under the applicable law; and (ii) reasonably cooperate with the Company (of, or after the Effective Time, to the fullest extent now or hereafter permitted by the DGCL , including provisions relating to advances of expenses incurred in the defense of any action or suit, provided that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under the DGCL shall be made by independent counsel mutually selected by the Indemnified Party and the Surviving Corporation) concerning the action, suit, proceeding or investigation. In the event any such claim, action, suit, proceeding or investigation Claim is brought against any Indemnified Party (whether arising before or after the Effective Time), (ai) the Indemnified Parties may retain counsel satisfactory to them and the Company (or them and the Surviving Corporation after the Effective Time), (bii) the Company (or after the Effective Time, the Surviving Corporation) shall, and, so long as the Surviving Corporation or any of its successors and assigns is an affiliate of Parent, Parent shall, and shall cause the Surviving Corporation to, pay all reasonable fees and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (ciii) the Company (or after the Effective Time, the Surviving Corporation) will will, and, so long as the Surviving Corporation or any of its successors and assigns is an affiliate of Parent, Parent shall, and shall cause the Surviving Corporation to, use its their respective best efforts to assist in the vigorous defense of any such matter, ; provided, that neither Parent, the Company nor the Surviving Corporation shall be liable for any such settlement effected without their Parent's written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.36.7, upon learning of any such claim, action, suit, proceeding or investigationClaim, shall notify the Company or the Surviving Corporation or Parent, as the case may be, thereof and shall deliver to the Company or the Surviving Corporation or Parent an undertaking to repay any amounts advanced pursuant hereto when and if a court of competent jurisdiction shall ultimately determinerender final judgment, after exhaustion of all avenues of not subject to appeal, that such Indemnified Party was not entitled to indemnification under this Section. In additionNotwithstanding the foregoing, upon the occurrence Surviving Corporation, including its affiliates, shall not, in connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the Effective Timesame general allegations, New Insurer shall be deemed expressly liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties except to the extent that: (i) such Indemnified Parties have assumed any obligations of the Company to its directors and officers for indemnification, whether under the Company's Bylaws been advised by counsel that there exist actual or the Subscription Agreementspotential differing interests between them, or otherwise(ii) local counsel, for acts in addition to such parties' regular counsel, is necessary or occurrences prior desirable in order to effectively defend against such action or proceeding. The Surviving Corporation, including its affiliates, shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final and not subject to further appeal, that the Effective Time. This Section 6.3 shall survive indemnification of such Indemnified Party in the consummation of the Merger. 6.4manner contemplated hereby is prohibited by applicable law.

Officers' and Directors' Insurance; Indemnification. It is understood and agreed that the Company shall indemnify and hold harmless and, after (a) For six years from the Effective Time, the Parent and the Surviving Corporation will indemnify shall use all reasonable efforts to cause to be maintained in effect HK's current directors' and hold harmlessofficers' insurance and indemnification policy or an equivalent policy or policies (so long as no lapse in coverage occurs as a result of such substitution) relating to actions, each present and former member of the Board of Governors and officer of the Companyalleged actions, omissions, and each director and officer of alleged omissions occurring on or prior to 22 23 the Attorney-in-Fact Effective Time (the "Indemnified PartiesD&O Insurance"), on terms no less favorable than those of such current policy in terms of coverage and amounts so long as the annual premium(s) therefor are not in excess of 150% of the last annual premium(s) paid prior to the full extent permitted by applicable law against any lossesdate hereof (the "Maximum Premium"); provided, claimshowever, damagesthat if the existing D&O Insurance expires, liabilitiesis terminated or canceled during such six-year period, costs, expenses, judgments and amounts paid in settlement in connection with any claim, action, suit, proceeding HK or investigation arising out of or pertaining to any action or omission which arises out of or relates to the transactions contemplated by this Plan, and the Company and the Surviving Corporation, as the case may be, will advance expenses shall use reasonable efforts to each obtain as much D&O Insurance as can be obtained for the remainder of such person upon receipt period for annualized premium(s) not in excess of an undertaking to: the Maximum Premium. (ib) repay such amount if it shall be determined ultimately that such person is not entitled to indemnification under the applicable law; and (ii) reasonably cooperate with the Company (of, after After the Effective Time, the Surviving Corporation) concerning the action, suit, proceeding or investigation. In the event any such claim, action, suit, proceeding or investigation is brought against any Indemnified Party (whether arising before or after the Effective Time), (a) the Indemnified Parties may retain counsel satisfactory to them and the Company (or them Parent and the Surviving Corporation after shall indemnify and hold harmless the Effective Time), (b) the Company (or after the Effective Time, the Surviving Corporation) shall pay all reasonable fees present and expenses of such counsel for the Indemnified Parties promptly as statements therefor are received, and (c) the Company (or after the Effective Time, the Surviving Corporation) will use its best efforts to assist in the vigorous defense of any such matter, provided, that neither the Company nor the Surviving Corporation shall be liable for any such settlement effected without their written consent, which consent, however, shall not be unreasonably withheld. Any Indemnified Party wishing to claim indemnification under this Section 6.3, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Company or the Surviving Corporation thereof and shall deliver to the Company or the Surviving Corporation an undertaking to repay any amounts advanced pursuant hereto when and if a court of competent jurisdiction shall ultimately determine, after exhaustion of all avenues of appeal, that such Indemnified Party was not entitled to indemnification under this Section. In addition, upon the occurrence of the Effective Time, New Insurer shall be deemed expressly to have assumed any obligations of the Company to its former directors and officers for indemnification, whether under the Company's Bylaws of HK (and those persons becoming directors or the Subscription Agreements, or otherwise, for acts or occurrences officers of HK prior to the Effective Time) (collectively, together with their respective heirs and representatives, the "Indemnified Parties") to the maximum extent permitted under Delaware law as from time to time may be in effect and (subject to any limitations in effect from time to time under Delaware law) under HK's certificate of incorporation and by-laws as in effect on the date hereof (true, complete and correct copies of which have been previously provided to Parent and SUB) from all claims by any person or persons, with respect to acts, omissions or other matters whether occurring prior to, on or at the Effective Time, relating to (i) the fact that he or she is or was a director, officer, employee or agent of HK or any of its Subsidiaries or (ii) acts, omissions and other matters arising from or relating to this agreement, the Stockholders Agreement or the transactions contemplated hereby or thereby, and (subject to any limitations in effect from time to time under Delaware law) will advance expenses to such directors and officers promptly upon receipt of written request therefor and delivery of the undertaking required by section 145(e) of the GCL (or any successor provision), and such indemnification shall (to the maximum extent permitted by applicable law) be mandatory rather than permissive; provided, that such indemnification obligations shall continue in full force and effect for the later of (i) a period of seven years from the Effective Time or (ii) the expiration of the applicable statute of limitations. This Section 6.3 (c) The obligations of the Parent and the Surviving Corporation under this section 9.7 shall survive not be terminated or modified in such a manner as to adversely affect any Indemnified Party to whom this section 9.7 applies without the consummation consent of each Indemnified Party (it being expressly agreed that the Indemnified Parties to whom this section 9.7 applies shall be third party beneficiaries of this provision). If Parent or SUB exercise the options granted in the Stockholders Agreement, then it will become liable in the same manner under this section 9.7 as if the Effective Time shall have occurred. (d) If the Surviving Corporation or any of its successors or assigns (i) reorganizes or consolidates with or merges into any other person and is not the resulting, continuing or surviving corporation or entity of such consolidation or merger or (ii) liquidates, dissolves or transfers all or substantially all of its properties and assets to any person, then, and in each such case, proper provision will be made so that the successors and assigns of the Surviving Corporation assume the obligations set forth in this section 9.7. 9.8 Material Adverse Effect. As used herein, "Material Adverse Effect" means any change or effect that is or is reasonably likely to be materially adverse to the business, assets, results of operations or financial condition of HK or does or is reasonably likely to materially impair the ability of HK to consummate the Merger. 6.49.9