Common use of Rights to Indemnification Clause in Contracts

Rights to Indemnification. Except as otherwise provided by Section 14, Indemnitee shall be entitled to the rights of indemnification provided in this Section 2 if, by reason of Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to any threatened, pending or completed Proceeding. Pursuant to this Section 2, Indemnitee shall be indemnified against Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any other issue or matter therein by reason of his Corporate Status, unless it is established by a preponderance of the evidence, as reflected in a final determination of a court of competent jurisdiction that is not subject to further appeal, that (i) the act or omission of Indemnitee was material to the matter(s) giving rise to the Proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty; (ii) Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that the act or omission was unlawful (clauses (i), (ii) and (iii) are hereinafter collectively referred to as “Bad Conduct”). Notwithstanding the foregoing, if the Proceeding was one by or in the right of the Company, no indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company if applicable law prohibits such indemnification; provided, however, that, if applicable law so permits, indemnification shall nevertheless be made by the Company in such event if and only to the extent that the court in which such Proceeding shall have been brought or is pending, shall so determine.

Rights to Indemnification. Except as otherwise provided by Section 14Subject to Sections 7 and 10 hereof, the Company shall indemnify Indemnitee shall be entitled to the rights of indemnification provided in this Section 2 if, by reason of Indemnitee’s Corporate Status (as hereinafter defined), if Indemnitee is, or is threatened to be madebe, made a party to or otherwise involved in any threatenedProceeding, pending or completed Proceeding. Pursuant to this Section 2, Indemnitee shall be indemnified from and against any and all Judgments and Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding and any Judgments resulting from such a Proceeding (including, without limitation, any tax also or otherwise payable by the Company or any other issue or matter therein Subsidiary for which Indemnitee becomes liable and which Indemnitee has paid and any tax payable by reason of his Corporate Status, unless it is established by Indemnitee as a preponderance result of the evidencereceipt of indemnification pursuant to this Agreement); provided, as reflected in a final determination of a court of competent jurisdiction however, that with respect to any Proceeding that is not subject to further appeal, that (i) the act or omission of Indemnitee was material to the matter(s) giving rise to the a Proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty; (ii) Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that the act or omission was unlawful (clauses (i), (ii) and (iii) are hereinafter collectively referred to as “Bad Conduct”). Notwithstanding the foregoing, if the Proceeding was one by or in the right of the CompanyCompany to procure a Judgment in its favor, no indemnification shall be made in respect of provided for any claim, issue or matter in such Proceeding as to which Indemnitee shall have has been adjudged to be liable to the Company if applicable law prohibits only to the extent that a court of competent jurisdiction shall ultimately determine in a final Judgment, not subject to appeal, that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnity for such indemnificationexpenses which such court shall deem proper. For the avoidance of doubt, Expenses incurred by Indemnitee in connection with Indemnitee or any Person associated with Indemnitee soliciting proxies with respect to the election of a director of the Company or any other matter submitted for a vote of the stockholders of the Company shall not be considered Expenses subject to indemnification or advancement pursuant to this Agreement (except to the extent such Expenses are incurred at the Company’s request); provided, however, that, if applicable law so permits, indemnification shall nevertheless that (i) Expenses incurred by Indemnitee in connection with a Proceeding to which Indemnitee is made a party or otherwise involved or threatened to be made a party or otherwise involved and that arises out of or relates to any such proxy solicitation shall be Expenses subject to indemnification and advancement pursuant to this Agreement except as otherwise provided by Sections 7 or 10 hereof and (ii) nothing in this sentence is intended to limit the Company’s expenditure of funds in connection with the solicitation of proxies on behalf of the Board or the reimbursement by the Company as permitted by law of costs or Expenses in such event if and only connection with any other solicitation of proxies that is determined to the extent that the court in which such Proceeding shall have been brought or is pending, shall so determinefor the benefit of the Company.

Rights to Indemnification. Except as otherwise provided by Section 14For six years after the Effective Time, Indemnitee shall be entitled the Surviving Corporation (or any successor to the rights Surviving Corporation) shall indemnify, defend and hold harmless the present and former officers, directors, employees and agents of indemnification provided the Company and its subsidiaries (each an "Indemnified Party") against all losses, claims, damages, liabilities, fees, costs and expenses (including reasonable fees and disbursements of counsel in this Section 2 if, by reason advance of Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to any threatened, pending or completed Proceeding. Pursuant to this Section 2, Indemnitee shall be indemnified against Expenses (as hereinafter defined), disposition of judgments, penaltiesfines, fines losses, claims, liabilities and amounts paid in settlement actually (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, which consent will not be unreasonably withheld or delayed)) based in whole or in part on the fact that such person is or was such a director, officer, employee or agent and reasonably incurred by Indemnitee arising out of actions or on Indemnitee’s behalf in connection with such Proceeding omissions occurring at or any other issue prior to the Effective Time (including, without limitation, matters arising out of or matter therein by reason of his Corporate Status, unless it is established by a preponderance pertaining to the Transactions) to the full extent provided under the terms of the evidenceCompany's Certificate of Incorporation, Bylaws and indemnification agreements, all as in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any action or suit, and subject to applicable law; provided, that, in the event any claim or claims are asserted or made within such six year period, all rights to indemnification or advancement of expenses in respect of such claim or claims shall continue until disposition of any and all such claims; provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Delaware law, the Company's Certificate of Incorporation or Bylaws or such agreements, as reflected in a final determination of a court of competent jurisdiction that is not subject the case may be, shall be made by independent counsel mutually acceptable to further appealParent and the Indemnified Party; and provided, further, that nothing herein shall impair any existing rights or obligations of any present or former directors or officers of the Company. In the event of any threatened or actual claim, suit, proceeding or investigation as to which an Indemnified Party is entitled to indemnification or advancement of expenses hereunder (whether asserted before, at or after the Effective Time), the Indemnified Party may retain counsel reasonably satisfactory to it after consultation with Parent, but in no event shall the Surviving Corporation be required to reimburse the costs of such counsel hereunder unless (i) the act or omission Surviving Corporation shall have declined to assume the defense of Indemnitee was material such claim with counsel reasonably satisfactory to the matter(s) giving rise to the Proceeding and (A) was committed Indemnified Party within ten U.S. Business Days of a written request for indemnification given in bad faith accordance with Section 8.5 or (B) was the result of active and deliberate dishonesty; (ii) Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that the act or omission was unlawful (clauses (i), (ii) and (iii) are hereinafter collectively referred to as “Bad Conduct”). Notwithstanding the foregoing, if the Proceeding was one by or in the right of the Company, no indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee Indemnified 23 27 Party shall have been adjudged reasonably concluded, upon the advice of counsel, that there may be defenses available to be liable it which conflict with those available to the Company if applicable law prohibits such indemnificationSurviving Corporation; provided, howeverthat the Surviving Corporation shall not, thatin connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, if applicable law so permitsbe liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, indemnification shall nevertheless be made by the Company in such event if and only except to the extent that the court local counsel, in which addition to such Proceeding shall have been brought parties' regular counsel, is necessary in order to effectively defend against such action or is pending, shall so determineproceeding.

Rights to Indemnification. Except as otherwise provided by Section 14The Corporation shall indemnify Indemnitee and Indemnitee's executors, Indemnitee shall be entitled administrators or assigns, to the rights of indemnification provided fullest extent permitted by Delaware law in this Section 2 ifeffect on the date hereof and as amended from time to time, by reason of Indemnitee’s Corporate Status (as hereinafter defined), if Indemnitee is, is or was a party or is threatened to be made, made a party to (or is or was a witness or other participant in) any threatenedProceeding by reason of the fact that Indemnitee served as a Director of the Corporation or any Affiliate thereof or because of any actual or alleged breach of duty, pending neglect, error, misstatement, misleading statement, omission or completed Proceedingother act done or not done, or suffered or wrongfully attempted by Indemnitee in Indemnitee's capacity as a Director of the Corporation or any Affiliate thereof. Pursuant The payments that the Corporation will be obligated to this Section 2, Indemnitee make hereunder shall be indemnified against Expenses include (as hereinafter defined)without limitation) damages, judgments, penaltiessettlements, fines fines, penalties and amounts paid in settlement Expenses, actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or any other issue or matter therein by reason of his Corporate Status, unless it is established by a preponderance not opposed to the best interests of the evidenceCorporation, as reflected in a final determination of a court of competent jurisdiction that is not subject and, with respect to further appeal, that (i) the act or omission of Indemnitee was material to the matter(s) giving rise to the Proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty; (ii) Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal Proceedingaction or proceeding, Indemnitee had no reasonable cause to believe that the act or omission Indemnitee’s conduct was unlawful (clauses (i), (ii) and (iii) are hereinafter collectively referred to as “Bad Conduct”). Notwithstanding the foregoing, if the Proceeding was one by or in the right of the Company, no indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company if applicable law prohibits such indemnificationunlawful; provided, however, that, if that the Corporation shall not be obligated to pay fines or other obligations or fees imposed by law or otherwise that it is prohibited by applicable law so permits, indemnification shall nevertheless be made by the Company in such event if and only to the extent that the court in which such Proceeding shall have been brought from paying as indemnity or is pending, shall so determinefor any other reason.

Rights to Indemnification. Except as otherwise provided by Section 14For six years after the Effective Time, Indemnitee shall be entitled the Surviving Corporation (or any successor to the rights Surviving Corporation) shall indemnify, defend and hold harmless the present and former officers, directors, employees and agents of indemnification provided the Company and its subsidiaries (each an "Indemnified Party") against all losses, claims, damages, liabilities, fees, costs and expenses (including reasonable fees and disbursements of counsel in this Section 2 if, by reason advance of Indemnitee’s Corporate Status (as hereinafter defined), Indemnitee is, or is threatened to be made, a party to any threatened, pending or completed Proceeding. Pursuant to this Section 2, Indemnitee shall be indemnified against Expenses (as hereinafter defined), disposition of judgments, penaltiesfines, fines losses, claims, liabilities and amounts paid in settlement actually (provided that any such settlement is effected with the written consent of Parent or the Surviving Corporation, which consent will not be unreasonably withheld or delayed)) based in whole or in part on the fact that such person is or was such a director, officer, employee or agent and reasonably incurred by Indemnitee arising out of actions or on Indemnitee’s behalf in connection with such Proceeding omissions occurring at or any other issue prior to the Effective Time (including, without limitation, matters arising out of or matter therein by reason of his Corporate Status, unless it is established by a preponderance pertaining to the Transactions) to the full extent provided under the terms of the evidenceCompany's Certificate of Incorporation, Bylaws and indemnification agreements, all as in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any action or suit, and subject to applicable law; provided, that, in the event any claim or claims are asserted or made within such six year period, all rights to indemnification or advancement of expenses in respect of such claim or claims shall continue until disposition of any and all such claims; provided, further, that any determination required to be made with respect to whether an Indemnified Party's conduct complies with the standards set forth under Delaware law, the Company's Certificate of Incorporation or Bylaws or such agreements, as reflected in a final determination of a court of competent jurisdiction that is not subject the case may be, shall be made by independent counsel mutually acceptable to further appealParent and the Indemnified Party; and provided, further, that nothing herein shall impair any existing rights or obligations of any present or former directors or officers of the Company. In the event of any threatened or actual claim, suit, proceeding or investigation as to which an Indemnified Party is entitled to indemnification or advancement of expenses hereunder (whether asserted before, at or after the Effective Time), the Indemnified Party may retain counsel reasonably satisfactory to it after consultation with Parent, but in no event shall the Surviving Corporation be required to reimburse the costs of such counsel hereunder unless (i) the act or omission Surviving Corporation shall have declined to assume the defense of Indemnitee was material such claim with counsel reasonably satisfactory to the matter(s) giving rise to the Proceeding and (A) was committed Indemnified Party within ten U.S. Business Days of a written request for indemnification given in bad faith accordance with Section 8.5 or (B) was the result of active and deliberate dishonesty; (ii) Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that the act or omission was unlawful (clauses (i), (ii) and (iii) are hereinafter collectively referred to as “Bad Conduct”). Notwithstanding the foregoing, if the Proceeding was one by or in the right of the Company, no indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee Indemnified Party shall have been adjudged reasonably concluded, upon the advice of counsel, that there may be defenses available to be liable it which conflict with those available to the Company if applicable law prohibits such indemnificationSurviving Corporation; provided, howeverthat the Surviving Corporation shall not, thatin connection with any one such action or proceeding or separate but substantially similar actions or proceedings arising out of the same general allegations, if applicable law so permitsbe liable for the fees and expenses of more than one separate firm of attorneys at any time for all Indemnified Parties, indemnification shall nevertheless be made by the Company in such event if and only except to the extent that the court local counsel, in which addition to such Proceeding shall have been brought parties' regular counsel, is necessary in order to effectively defend against such action or is pending, shall so determineproceeding.

Rights to Indemnification. Except as otherwise provided by Section 14, Indemnitee shall be entitled (a) Subject to the rights of indemnification provided limitations set forth in this Section 2 if9A, Seller shall indemnify and hold harmless Purchaser from and against any and all losses, liabilities, damages, demands, claims, suits, actions, judgments or causes of action, assessments, costs and expenses, including, without limitation, interest, penalties, reasonable attorneys' fees, any and all reasonable expenses actually incurred in investigating, preparing or defending against any litigation commenced or threatened and any and all amounts actually paid in settlement (collectively, "DAMAGES"), arising from any claim (a "RESULTING CLAIM") asserted against Purchaser as a result of or arising from any lien, claim, interest or encumbrance held or asserted by reason of Indemnitee’s Corporate Status any Notice Party (as hereinafter defined) against Seller or the Assets (other than an Assumed Liability), Indemnitee is, or is threatened to be made, a party to any threatened, pending or completed Proceeding. Pursuant to this Section 2, Indemnitee shall be indemnified against Expenses (as hereinafter defined), judgments, penalties, fines and amounts paid in settlement actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any other issue or matter therein by reason of his Corporate Status, unless it is established by a preponderance of the evidence, as reflected in a final determination of a court of competent jurisdiction that is not subject to further appeal, that (i) the act or omission of Indemnitee was material to the matter(s) giving rise to the Proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty; (ii) Indemnitee actually received an improper personal benefit in money, property or services; or (iii) in the case of any criminal Proceeding, Indemnitee had reasonable cause to believe that the act or omission was unlawful (clauses (i), (ii) and (iii) are hereinafter collectively referred to as “Bad Conduct”). Notwithstanding the foregoing, if the Proceeding was one by or in the right of the Company, no indemnification shall be made in respect of any claim, issue or matter in such Proceeding as to which Indemnitee shall have been adjudged to be liable to the Company if applicable law prohibits such indemnification; provided, however, that, if applicable law so permits, indemnification shall nevertheless be made by the Company in such event if and but only to the extent that the court in which such Proceeding shall Resulting Claim could not have been brought enforced against Purchaser had the Sale Order provided that the sale of the Assets to Purchaser was free and clear of all liens, claims, interests and encumbrances of the Notice Parties (individually an "INDEMNIFIABLE CLAIM" and collectively "INDEMNIFIABLE CLAIMS"). For purposes hereof, "NOTICE PARTY" shall mean any Person, other than Purchaser, who received notice of the Sale Motion. For the avoidance of doubt, Indemnifiable Claims shall not include (i) claims by a Notice Party related to the condition of products not asserted as of the Closing or is pending, shall so determine(ii) any Assumed Liability.