Common use of Certain Indemnification Matters Clause in Contracts

Certain Indemnification Matters. From and after the Closing, LNY shall indemnify, defend and hold harmless each person who is now, or has been at any time since January 23, 2004 or who becomes prior to the Closing, a director or officer of any of the Acquired Entities (each a "Covered Person") from and against all losses, claims, damages, costs and expenses (including attorneys' fees and expenses), liabilities, judgments and, subject to the proviso of this sentence, settlement amounts that are paid or incurred in connection with any pending, threatened or completed claim, action, suit, formal or informal proceeding, formal or informal investigation or formal or informal inquiry (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Closing) that is (a) based on, or arises out of, the fact that such Covered Person is or was a director or officer of any of the Acquired Entities or (b) based on, or arising out of, or pertaining hereto or the transactions contemplated hereby, in each case under clause (a) or clause (b) above, to the fullest extent the applicable Acquired Entity is permitted under applicable Nevada Law to indemnify its own directors or officers. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding, investigation or inquiry is brought against any Covered Person, (A) LNY shall have the right to assume the defense thereof with legal counsel of LNY's choosing and LNY shall not be liable to such Covered Person for any legal expenses of other counsel or any expenses subsequently incurred by such Covered Person in connection with the defense thereof; provided, however, that such Covered Person may employ counsel of its own choosing, and LNY shall pay such Covered Person for reasonable legal fees and expenses of such counsel, if under applicable standards of professional conduct the counsel selected by LNY may be reasonably determined by counsel consulted by such Covered Person, to have a material conflict on a significant issue representing the applicable Acquired Entity and the Covered Person in the conduct of the defense of an action and (B) LNY shall not be liable for any settlement of any claim effected without its written consent (which consent shall not be unreasonably withheld or delayed). Any Covered Person wishing to obtain indemnification under this Section 5.22, upon learning of any claim, action, suit, proceeding, investigation or inquiry, shall promptly notify LNY thereof; provided, however, the failure of any Covered Person to give such notice shall not waive any rights of the Covered Person under this Section 5.22, except to the extent that the rights of LNY are actually materially prejudiced thereby. In the event LNY does not assume the defense of an action in accordance with this Section 5.22, (w) the Covered Persons as a group seeking indemnification with respect to the same or a substantially related matter may retain only one (1) law firm with respect to such matter, except to the extent that under applicable standards of professional conduct, such counsel would have a material conflict on a significant issue representing such Covered Person and any other Covered Person or Covered Persons, (x) LNY shall pay all reasonable out-of-pocket costs and expenses of the disposition of any such claim, action, suit, proceeding, investigation or inquiry to each Covered Person promptly after statements therefor are received and otherwise advance to such Covered Person upon request reimbursement of documented expenses reasonably incurred, (y) LNY shall pay all reasonable fees and expenses of such counsel for the Covered Persons and all reasonable out-of-pocket costs and expenses of the Covered Persons in connection with seeking and obtaining indemnification from LNY, from time to time, in each case within three (3) Business Days of the receipt by LNY of a statement from such counsel for the Covered Persons and (z) LNY shall use reasonable best efforts to assist in the defense of any such matter. Without limiting the foregoing, to the extent that any Covered Person is, by reason of the fact that such Covered Person is or was a director or officer of any of the Acquired Companies, a witness in any claim, action, suit, proceeding, investigation or inquiry to which such Covered Person is not a party, such Covered Person shall be indemnified and held harmless against all reasonable out-of-pocket costs and expenses in connection therewith. LNY shall not enter into any settlement of any claim in which LNY or any of its Affiliates is jointly liable with an Covered Person (or would be if joined in such claim) unless such settlement provides for a full and final release of all claims asserted against such Covered Person. Neither LNY nor any of its Affiliates shall take any action so as to amend, modify, limit or repeal the provisions for indemnification of Covered Persons contained in the Articles of Incorporation or Bylaws (or other comparable organizational documents) of the Acquired Entities in such a manner as would adversely affect the rights of any Covered Person to be indemnified by such corporations in respect of their serving in such capacities prior to the Closing. Notwithstanding anything to the contrary set forth in this Section 5.22, LNY shall in no event be required under this Section 5.22 to provide indemnification and reimbursement of fees, costs and expenses to the Covered Persons in an aggregate amount exceeding $15,000,000.

Certain Indemnification Matters. From and after the Closing, LNY shall indemnify, defend and hold harmless each person who is now, or has been at any time since January 23, 2004 or who becomes prior to the Closing, a director or officer of any of the Acquired Entities (each a "“Covered Person"”) from and against all losses, claims, damages, costs and expenses (including attorneys' ’ fees and expenses), liabilities, judgments and, subject to the proviso of this sentence, settlement amounts that are paid or incurred in connection with any pending, threatened or completed claim, action, suit, formal or informal proceeding, formal or informal investigation or formal or informal inquiry (whether civil, criminal, administrative or investigative and whether asserted or claimed prior to, at or after the Closing) that is (a) based on, or arises out of, the fact that such Covered Person is or was a director or officer of any of the Acquired Entities or (b) based on, or arising out of, or pertaining hereto or the transactions contemplated hereby, in each case under clause (a) or clause (b) above, to the fullest extent the applicable Acquired Entity is permitted under applicable Nevada Law to indemnify its own directors or officers. Without limiting the foregoing, in the event that any such claim, action, suit, proceeding, investigation or inquiry is brought against any Covered Person, (A) LNY shall have the right to assume the defense thereof with legal counsel of LNY's ’s choosing and LNY shall not be liable to such Covered Person for any legal expenses of other counsel or any expenses subsequently incurred by such Covered Person in connection with the defense thereof; provided, however, that such Covered Person may employ counsel of its own choosing, and LNY shall pay such Covered Person for reasonable legal fees and expenses of such counsel, if under applicable standards of professional conduct the counsel selected by LNY may be reasonably determined by counsel consulted by such Covered Person, to have a material conflict on a significant issue representing the applicable Acquired Entity and the Covered Person in the conduct of the defense of an action and (B) LNY shall not be liable for any settlement of any claim effected without its written consent (which consent shall not be unreasonably withheld or delayed). Any Covered Person wishing to obtain indemnification under this Section 5.22, upon learning of any claim, action, suit, proceeding, investigation or inquiry, shall promptly notify LNY thereof; provided, however, the failure of any Covered Person to give such notice shall not waive any rights of the Covered Person under this Section 5.22, except to the extent that the rights of LNY are actually materially prejudiced thereby. In the event LNY does not assume the defense of an action in accordance with this Section 5.22, (w) the Covered Persons as a group seeking indemnification with respect to the same or a substantially related matter may retain only one (1) law firm with respect to such matter, except to the extent that under applicable standards of professional conduct, such counsel would have a material conflict on a significant issue representing such Covered Person and any other Covered Person or Covered Persons, (x) LNY shall pay all reasonable out-of-pocket costs and expenses of the disposition of any such claim, action, suit, proceeding, investigation or inquiry to each Covered Person promptly after statements therefor are received and otherwise advance to such Covered Person upon request reimbursement of documented expenses reasonably incurred, (y) LNY shall pay all reasonable fees and expenses of such counsel for the Covered Persons and all reasonable out-of-pocket costs and expenses of the Covered Persons in connection with seeking and obtaining indemnification from LNY, from time to time, in each case within three (3) Business Days of the receipt by LNY of a statement from such counsel for the Covered Persons and (z) LNY shall use reasonable best efforts to assist in the defense of any such matter. Without limiting the foregoing, to the extent that any Covered Person is, by reason of the fact that such Covered Person is or was a director or officer of any of the Acquired Companies, a witness in any claim, action, suit, proceeding, investigation or inquiry to which such Covered Person is not a party, such Covered Person shall be indemnified and held harmless against all reasonable out-of-pocket costs and expenses in connection therewith. LNY shall not enter into any settlement of any claim in which LNY or any of its Affiliates is jointly liable with an Covered Person (or would be if joined in such claim) unless such settlement provides for a full and final release of all claims asserted against such Covered Person. Neither LNY nor any of its Affiliates shall take any action so as to amend, modify, limit or repeal the provisions for indemnification of Covered Persons contained in the Articles of Incorporation or Bylaws (or other comparable organizational documents) of the Acquired Entities in such a manner as would adversely affect the rights of any Covered Person to be indemnified by such corporations in respect of their serving in such capacities prior to the Closing. Notwithstanding anything to the contrary set forth in this Section 5.22, LNY shall in no event be required under this Section 5.22 to provide indemnification and reimbursement of fees, costs and expenses to the Covered Persons in an aggregate amount exceeding $15,000,000.