Common use of Without limiting Section 6 Clause in Contracts

Without limiting Section 6. 07(a), from and after the Effective Time, in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee), or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless, as and to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time, each such Indemnified Party against any losses, claims, Damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation of each Indemnified Party to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time upon receipt of any undertaking from such Indemnified Party contemplated by applicable Law or such Organizational Documents with respect to repayment of advancement), judgments, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. Parent’s and the Surviving Corporation’s obligations under this Section 6.07(b) shall continue in full force and effect for a period or six (6) years after from the Effective Time provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claim.

Without limiting Section 6. 07(a8(a), or any rights of any Indemnified Party pursuant to pursuant to any indemnification arrangement, from and after the Effective Acceptance Time, in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”)proceeding, whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee), or officer of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactionstransactions contemplated hereby, whether in any case asserted or arising before or after the Effective Acceptance Time, Parent and the Company, or if the Merger Condition is satisfied, the Surviving Corporation shall indemnify and hold harmless, as and to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective TimeLaw, each such Indemnified Party against any lossescosts, claims, Damages, liabilities, costscharges, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation of to each Indemnified Party to the fullest extent permitted by applicable Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time upon receipt of any undertaking from such Indemnified Party contemplated by applicable Law or such Organizational Documents with respect to repayment of advancementan undertaking), judgments, fines and amounts paid in settlement of actually and reasonably incurred by him or on his behalf in connection with any such threatened or actual Claimproceeding. Neither the Company, or if the Merger Condition is satisfied, nor the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual proceeding for which indemnification could be sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such proceeding or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. The Company, or if the Merger Condition is satisfied, Parent and the Surviving Corporation, shall cooperate with an Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder, in each case at its own expense; provided that, absent an actual or potential conflict of interest, in which case such Indemnified Party shall control and appoint its own lead counsel at the Company’s, or if the Merger Condition is satisfied, the Surviving Corporation’s, expense. The Company, or if the Merger Condition is satisfied, the Surviving Corporation, shall be entitled to control and appoint lead counsel for such defense. The Company’s, Parent’s and the Surviving Corporation’s ’s, as applicable, obligations under this Section 6.07(b6.8(c) shall continue in full force and effect for a period or beginning upon the Acceptance Time and ending six (6) years after from the Effective Time Acceptance Time; provided, however, that all rights to indemnification in respect of any Claim proceeding asserted or made within such period shall continue until the final disposition of such Claim.proceeding. 57

Without limiting Section 6. 07(a2(a), from and after the Effective Time, Parent and the Surviving Corporation shall, to the fullest extent permitted by applicable Legal Requirements and the certificate of incorporation, bylaws or other charter or organizational documents of the applicable Acquired Company, indemnify and hold harmless each Indemnified Person against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, damages or liabilities incurred in connection with any actual or threatened claim or Legal Proceeding (including with respect to this Agreement or the Transactions or other matters existing or occurring at or prior to the Effective Time) to the extent based on, arising out of or pertaining to (i) the fact that the Indemnified Person is or was a director or officer of an Acquired Company or (ii) acts or omissions by the Indemnified Person in the Indemnified Person’s capacity as a director or officer of an Acquired Company, in each case of the foregoing clauses (i) and (ii), whether asserted, commenced or claimed prior to, at or after the Effective Time. Without limiting the foregoing, from and after the Effective Time, in the event of any actual or threatened claim or actual claim, suit, action, proceeding or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director (including in a capacity as a member of any board committee), or officer Legal Proceeding of the Company, any of its Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of type described in the Transactions, whether in any case asserted or arising before or after the Effective Timeforegoing sentence, Parent and the Surviving Corporation shall indemnify and hold harmlessshall, as and to the fullest extent permitted by Law and the certificate of incorporation, bylaws or other charter or organizational documents of the applicable Acquired Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time, each such Indemnified Party against advance any losses, claims, Damages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition legal counsel) of any claim, suit, proceeding or investigation of each Indemnified Party to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time upon receipt of any undertaking from such Indemnified Party contemplated by applicable Law or such Organizational Documents with respect to repayment of advancement), judgments, fines and amounts paid in settlement of or Person incurred in connection with such actual or threatened claim or Legal Proceeding, subject to such Indemnified Person providing an undertaking to repay all amounts so advanced if it is ultimately determined by final and non-appealable judicial decision that such Indemnified Person is not entitled to indemnification for such expenses. Parent and the Surviving Corporation shall not, and shall cause each Subsidiary of the Surviving Corporation not to, settle or compromise, or consent to entry of judgement in, any such threatened or actual Claimclaim or Legal Proceeding for which indemnification could be sought by an Indemnified Person hereunder, unless such settlement, compromise or judgement includes an unconditional release of such Indemnified Person from all liability arising out of such claim or Legal Proceeding (or such Indemnified Person otherwise consents in writing to such settlement, compromise or judgement). Parent’s and the Surviving Corporation’s obligations under this Section 6.07(b6.2(b) shall continue in full force and effect for a period or of six (6) years after from the Effective Time provided, however, Time; provided that all rights to indemnification in respect of any Claim claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, asserted or made within such period shall continue until the final disposition of such Claimclaim, action, suit, proceeding or investigation.

Without limiting Section 6. 07(a)05(a) or any rights of any Indemnified Party (as defined below) pursuant to any indemnification arrangement, from and after the Closing through the sixth (6th) anniversary of the date on which the Effective Time occurs, Parent, the Company (and following the Effective Time, the Surviving Corporation) and their respective subsidiaries shall indemnify, defend and hold harmless each current and former officer or director of the Company and its subsidiaries (each, taken together with such person’s heirs, executors or administrators, an “Indemnified Party”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable and documented fees, costs and expenses, including attorneys’ fees, investigation expenses and disbursements (collectively, “Costs”), incurred in the event of connection with any threatened or actual claim, suit, action, proceeding Action directly or investigation (a “Claim”), whether civil, criminal or administrative, based in whole or in part on, or indirectly arising in whole or in part out of, of or pertaining to (i) the fact that the an Indemnified Party is or was a director (including in a capacity as a member of any board committee)an officer, director, employee, fiduciary or officer agent of the Company, Company or any of its Subsidiaries or any of their respective predecessors subsidiaries or (ii) matters existing or occurring at or prior to the Effective Time (including any claim in connection with this Agreement or any of and the Transactionstransactions and actions contemplated hereby), whether in any case asserted or arising before claimed prior to, at or after the Effective Time, to the fullest extent permitted under the Company Organizational Documents and the DGCL. In the event of any such Action, each Indemnified Party shall be entitled to the prompt advancement (and Parent shall use commercially reasonable efforts to make or cause to be made such advancement within ten (10) business days following a request, but in no event shall such advancement be made later than thirty (30) days following any such request) of expenses actually and reasonably incurred in the defense of any claim, action, suit, proceeding or investigation from the Surviving Corporation to the fullest extent permitted by the Company Organizational Documents and the DGCL following request by the Indemnified Party therefor; provided that any person to whom expenses are advanced provides an undertaking, if and only to the extent required by the DGCL, to repay such advances if it is ultimately determined by final adjudication that such person is not entitled to be indemnified by the Surviving Corporation as authorized by the DGCL, (x) without limiting the foregoing, each Indemnified Party may retain the Company’s regularly engaged independent legal counsel (provided that such engagement would not create or develop into a conflict for such legal counsel under applicable rules of professional conduct) or other counsel satisfactory to such Indemnified Party, subject to the consent of the insurance carrier under the Tail Policy (if and to the extent required under the Tail Policy), and Parent and the Surviving Corporation shall indemnify pay all reasonable fees and hold harmlessexpenses of such counsel for the Indemnified Party promptly following receipt of statements therefor; provided that, as Parent shall not be required to pay the fees and expenses of more than one (1) legal counsel to represent the Indemnified Parties in connection with a specific Action or series of factually related Actions unless the engagement of one (1) legal counsel to represent all Indemnified Parties in such Action(s) would create, or reasonably be expected to develop into, a conflict under applicable Law or rules of professional conduct for such legal counsel, in which case, the foregoing limitation on Parent’s obligation to pay the fees and expense of legal counsel shall not be applicable, and (y) none of Parent or the Surviving Corporation shall settle, compromise or consent to the fullest extent permitted entry of any judgment in any threatened or actual Action (and in which indemnification could be sought by Law such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Action or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent and (z) Parent and the Company’s or Surviving Corporation shall use commercially reasonable efforts to reasonably cooperate in the defense of any matter for which the Indemnified Party could seek indemnification hereunder, in each case at its applicable Subsidiary’s Organizational Documents in effect at own expense. With respect to any determination of whether an Indemnified Party is entitled to indemnification by the Company (and following the Effective Time, each such the Surviving Corporation) under this Section 6.05(b), the Indemnified Party against shall have the right to require that such determination be made by special, independent legal counsel selected by the Indemnified Party, subject to the consent of the insurance carrier under the Tail Policy (if and to the extent required under the Tail Policy), and approved by the Company or Surviving Corporation, as applicable, (which approval shall not be unreasonably withheld, conditioned or delayed), and who has not otherwise performed material services for Parent, the Company or the Surviving Corporation or any losses, claims, Damages, liabilities, costs, expenses of their respective Affiliates within the last three (including reasonable attorney’s 3) years; provided that Parent shall not be required to pay the fees and expenses in advance of the final disposition of any claimmore than one (1) special, suit, proceeding or investigation of each independent legal counsel to determine whether more than one Indemnified Party is entitled to indemnification under this Section 6.05(b) in connection with a specific Action or series of factually related Actions unless the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time upon receipt engagement of any undertaking from one (1) special, independent legal counsel to make such determination for all such Indemnified Party contemplated by Parties would create, or reasonably be expected to develop into, a conflict under applicable Law or rules of professional conduct for such Organizational Documents with respect to repayment of advancement)legal counsel, judgmentsin which case, fines and amounts paid in settlement of or in connection with any such threatened or actual Claim. the foregoing limitation on Parent’s obligation to pay the fees and the Surviving Corporation’s obligations under this Section 6.07(b) expense of special, independent legal counsel shall continue in full force and effect for a period or six (6) years after from the Effective Time provided, however, that all rights to indemnification in respect of any Claim asserted or made within such period shall continue until the final disposition of such Claimnot be applicable.

Without limiting Section 6. 07(a)6(a) or any rights of any Indemnified Party pursuant to the Company Certificate of Incorporation, the Company By-Laws, any indemnification agreement, from and after the Effective Time, in the event of any threatened or actual claim, suit, action, proceeding or investigation (a “Claim”)Proceeding, whether civil, criminal or administrative, based in whole or in part on, or arising in whole or in part out of, or pertaining to (i) the fact that the Indemnified Party is or was a director director, officer, employee or agent (including in a capacity as a member of fiduciary with respect to any board committee), or officer employee benefit plan) of the Company, any of its the Company Subsidiaries or any of their respective predecessors or (ii) this Agreement or any of the Transactions, whether in any case asserted or arising before or after the Effective Time, Parent and the Surviving Corporation shall indemnify and hold harmless, as and to the fullest extent permitted by Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective TimeLaw, each such Indemnified Party against any and all losses, claims, Damagesdamages, liabilities, costs, expenses (including reasonable attorney’s fees and expenses in advance of the final disposition of any claim, suit, proceeding or investigation of Proceeding to each Indemnified Party to the fullest extent permitted by applicable Law and the Company’s or its applicable Subsidiary’s Organizational Documents in effect at the Effective Time upon receipt of any undertaking from such Indemnified Party contemplated an undertaking, if any, required by applicable Law or such Organizational Documents with respect to repayment of advancementLaw), judgments, fines fines, awards and amounts paid in settlement or compromise of or in connection with any such threatened or actual ClaimProceeding. None of Parent or the Surviving Corporation shall settle, compromise or consent to the entry of any judgment in any threatened or actual Proceeding for which indemnification could be sought by an Indemnified Party hereunder, unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such Proceeding or such Indemnified Party otherwise consents in writing to such settlement, compromise or consent. Parent and the Surviving Corporation shall cooperate with each Indemnified Party in the defense of any matter for which such Indemnified Party could seek indemnification hereunder, in each case at its own expense; provided that, absent an actual or potential conflict of interest, in which case such Indemnified Party shall control and appoint its own lead counsel at Parent’s or the Surviving Corporation’s expense, as applicable, Parent and the Surviving Corporation shall be entitled to control and appoint lead counsel for such defense. Parent’s and the Surviving Corporation’s obligations under this Section 6.07(b6.6(b) shall continue in full force and effect for a the period or beginning immediately following the Effective Time and ending six (6) years after from the Effective Time Time; provided, however, that all rights to indemnification in respect of any Claim Proceeding asserted or made within such period shall continue until the final disposition of such Claim.Proceeding. 40