Common use of 5Indemnification Clause in Contracts

5Indemnification. (a) From and for a period of six (6) years after the Effective Time, Acquiror shall indemnify, defend and hold harmless, to the fullest extent permitted under applicable Legal Requirements, each current or former director, officer or employee of the Company or any of its Subsidiaries or fiduciary of the Company or any of its Subsidiaries under any Company Benefit Plans (each, an “Indemnified Party”), and any Person who becomes an Indemnified Party between the date hereof and the Effective Time, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, including the Contemplated Transactions, whether asserted or claimed prior to, at or after the Effective Time. Acquiror shall also advance expenses incurred by an Indemnified Party in each such case to the fullest extent permitted by applicable Legal 44 ​ Requirements, subject to the receipt of an undertaking from such Indemnified Party to repay such advanced expenses if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder. (b) Any Indemnified Party wishing to claim indemnification under Section 6.5(a), upon learning of any claim for indemnification pursuant thereto, shall promptly notify Acquiror thereof; provided, however, that failure to so notify will not affect the obligations of the Surviving Entity under Section 6.5(a) unless and to the extent that the Surviving Entity is actually prejudiced as a consequence. In the event of any such legal action (whether arising before or after the Effective Time): (i) the Surviving Entity shall have the right to assume the defense thereof and the Surviving Entity shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, except that if the Surviving Entity elects in writing not to assume such defense, Indemnified Parties may retain counsel satisfactory to them, and the Surviving Entity shall pay all reasonable fees and expenses of such counsel for Indemnified Parties promptly as statements therefor are received; provided, however, that in such instance the Surviving Entity shall be obligated pursuant to this Section 6.5(b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, except where a conflict of interest would limit or preclude the retention of one firm of counsel; (ii) Indemnified Parties will cooperate in the defense of any such claim for indemnification; and (iii) the Surviving Entity shall not be liable for any settlement effected without its prior written consent; and provided, further, that the Surviving Entity shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated under Section 6.5(a) is prohibited by applicable Legal Requirements. (c) Prior to the Effective Time, the Company shall obtain and Acquiror shall fully pay the premium for the extension of the Company’s directors’ and officers’ liability insurance policies set forth on Schedule 6.5 of the Company Disclosure Schedules (complete and accurate copies of which have been heretofore made available to Acquiror) (the “Existing D&O Policy”) in respect of acts or omissions occurring at or prior to the Effective Time, covering each person currently covered by the Existing D&O Policy for a period of six (6) years after the Effective Time; provided that Acquiror shall not be required to pay in the aggregate more than two hundred fifty percent (250%) of the amount of the aggregate annual premium paid by the Company for the current policy term for such policy, which annual premium is set forth on Schedule 6.5 of the Company Disclosure Schedules. It is understood and agreed that if the aggregate premiums for the coverage set forth in this Section 6.5(b) would exceed such two hundred fifty percent (250%) amount, Acquiror shall be obligated to pay for the maximum available coverage as may be obtained by the Company for such two hundred fifty percent (250%) amount. (d) The provisions of this Section 6.5 shall survive consummation of the Merger and the Bank Merger and are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, his or her heirs and his or her legal representatives.

5Indemnification. A. The Company shall indemnify (ai) From its Managers and for a period of six (6) years after the Effective Time, Acquiror shall indemnify, defend and hold harmless, Officers to the fullest extent permitted under applicable Legal Requirements, each current or former director, officer or employee authorized by the laws of the Company State of Delaware now or any of its Subsidiaries or fiduciary of hereafter in force applied as if the Company or any of its Subsidiaries under any Company Benefit Plans (each, an “Indemnified Party”), and any Person who becomes an Indemnified Party between the date hereof and the Effective Time, against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Effective Timewere a Delaware corporation, including (without limitation) the Contemplated Transactionsadvance of expenses, whether asserted or claimed prior tounder the procedures (ii) the Class B Member and its directors, at or after the Effective Time. Acquiror shall also advance expenses incurred by an Indemnified Party in each such case officers, employees, representatives and agents to the fullest extent permitted or authorized by applicable Legal 44 ​ Requirements, subject to the receipt of an undertaking from such Indemnified Party to repay such advanced expenses if it is determined by a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Party was not entitled to indemnification hereunder. (b) Any Indemnified Party wishing to claim indemnification under Section 6.5(a), upon learning of any claim for indemnification pursuant thereto, shall promptly notify Acquiror thereof; provided, however, that failure to so notify will not affect the obligations laws of the Surviving Entity under Section 6.5(a) unless and to the extent that the Surviving Entity is actually prejudiced as a consequence. In the event State of any such legal action Delaware now or hereafter in force, including (whether arising before or after the Effective Time): (iwithout limitation) the Surviving Entity shall have the right to assume the defense thereof and the Surviving Entity shall not be liable to such Indemnified Parties for any legal expenses advance of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereofexpenses, except that if the Surviving Entity elects in writing not to assume such defense, Indemnified Parties may retain counsel satisfactory to them, and the Surviving Entity shall pay all reasonable fees and expenses of such counsel for Indemnified Parties promptly as statements therefor are received; provided, however, that in such instance the Surviving Entity shall be obligated pursuant to this Section 6.5(b) to pay for only one firm of counsel for all Indemnified Parties in any jurisdiction, except where a conflict of interest would limit or preclude the retention of one firm of counsel; (ii) Indemnified Parties will cooperate in the defense of any such claim for indemnification; and (iii) other employees and agents of the Surviving Entity Company to such extent as shall be authorized by the Board of Managers and is permitted by law. The foregoing rights of indemnification shall not be liable for exclusive of any settlement effected without its prior written consent; other rights to which those seeking indemnification may be entitled. The Board of Managers may take such action as is necessary to carry out these indemnification provisions and providedis expressly empowered to adopt, further, that the Surviving Entity shall not have any obligation hereunder approve and amend from time to any Indemnified Party when and if a court of competent jurisdiction shall determine, and time such determination shall have become final, that the resolutions or contracts implementing such provisions or such further indemnification of such Indemnified Party in the manner contemplated under Section 6.5(a) is prohibited arrangements as may be permitted by applicable Legal Requirements. (c) Prior to the Effective Time, the Company shall obtain and Acquiror shall fully pay the premium for the extension law. No amendment of the Company’s directors’ and officers’ liability insurance policies set forth on Schedule 6.5 Certificate of Formation or this Agreement or repeal of any of the Company Disclosure Schedules (complete and accurate copies of which have been heretofore made available provisions thereof shall limit or eliminate the right to Acquiror) (the “Existing D&O Policy”) in indemnification provided hereunder with respect of to acts or omissions occurring at or prior to such amendment or repeal. The indemnification shall (x) be payable solely from the Effective Time, covering each person currently covered by the Existing D&O Policy for a period of six (6) years after the Effective Time; provided that Acquiror shall not be required to pay in the aggregate more than two hundred fifty percent (250%) of the amount of the aggregate annual premium paid by the Company for the current policy term for such policy, which annual premium is set forth on Schedule 6.5 assets of the Company Disclosure Schedules. It is understood and agreed that if no Member shall have any personal or corporate liability therefor and (y) be expressly subordinate to any obligations of the aggregate premiums for Company on or with respect to the coverage Receivables-Backed Notes and the distributions to the Class B Member set forth in this Section 6.5(b) would exceed such two hundred fifty percent (250%) amount3.2 hereof. B. To the fullest extent permitted by Delaware statutory or decisional law, Acquiror as amended or interpreted, no Manager, Officer or Class B Member of the Company shall be obligated personally liable to pay for the maximum available coverage as may be obtained by the Company or any Members for such two hundred fifty percent (250%) amount. (d) The provisions of this Section 6.5 shall survive consummation money damages. No amendment of the Merger Certificate of Formation or this Agreement, or repeal of any of their respective provisions shall limit or eliminate the limitation on liability provided to Managers, Officers and the Bank Merger and are intended Class B Members hereunder with respect to be for the benefit of, and will be enforceable by, each Indemnified Party, his any act or her heirs and his omission occurring prior to such amendment or her legal representativesrepeal.