Common use of Certain Indemnification Clause in Contracts

Certain Indemnification. The Company agrees to indemnify (which indemnity shall include advancement of expenses as they are incurred) and hold harmless Purchaser and each of Purchaser’s officers, directors, employees, partners, agents and affiliates for loss or damage or expenses (including reasonable attorneys fees) arising as a result of or related to (a) any breach or alleged breach by the Company of any of its representations or covenants set forth herein, (b) any cause of action, suit or claim brought or made against Purchaser and arising out of or resulting from the execution, delivery, performance or enforcement of the Investment Agreements or any other certificate, instrument or document contemplated hereby or thereby, (c) any cause of action, suit or claim brought or made against Purchaser that Purchaser has acted in concert with any other person by virtue of the negotiation, execution, delivery, performance or enforcement of the Investment Agreements or any other certificate, instrument or document contemplated hereby or thereby, or the consummation of the transactions contemplated herein or therein (d) any transaction financed or to be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities or (e) the status of Purchaser or holder of the Securities as an investor in the Company. To the extent that the foregoing undertaking by the Company may be unenforceable for any reason, the Company shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law. Notwithstanding, in no event shall the Company be required to indemnify Purchaser for any claims to the extent that a court of competent jurisdiction shall have determined by a final judgment that such claims had arisen or were the result of Purchaser’s misconduct, including without limitation, violations of law, breach by Purchaser of a contract with a third party, or negligence. After receipt by Purchaser of notice of any action, proceeding or claim subject to the indemnification provisions herein (each event a “Circumstance”), Purchaser shall promptly give the Company notice describing the Circumstance. The Company shall have the right (without prejudice to the right of Purchaser to participate at its own expense through counsel of its own choosing) to defend or prosecute such claim at their expense and through counsel of their own choosing if they give written notice of their intention to do so no later than the time by which the interest of Purchaser would be materially prejudiced as a result of its failure to have received such notice; provided, however, that if the defendants in any action shall include both the Company and Purchaser, and Purchaser shall have reasonably concluded that counsel selected by the Company has a conflict of interest because of the availability of different or additional defenses to Purchaser, Purchaser shall cooperate fully in the defense of such claim and shall make available to the Company pertinent information under its control relating thereto, but shall be entitled to be reimbursed, as provided in this Section 8, for all costs and expense incurred by it in connection therewith; provided, however, that such reimbursement shall not apply to amounts paid in settlement of any claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such Circumstance shall not relieve the Company of any liability to Purchaser under this Section 4.15, except to the extent that the Company is actually prejudiced in its ability to defend such action.

Certain Indemnification. (a) The Company Buyer agrees that, to indemnify (which indemnity shall include the maximum extent permitted by law, all rights to indemnification, advancement of expenses as they are incurredand exculpation from liability for acts or omissions occurring prior to the Closing Date now existing in favor of Parent, Seller, their Affiliates and their current or former directors, officers, employees, agents and representatives (a “Covered Person”) pursuant to Article 11 of the Company LLC Agreement or any statutory rights under Delaware law will survive the Closing and hold harmless Purchaser will continue in full force and effect in accordance with their respective terms for a period of not less than six years after the Closing Date, and that the Buyer (i) will honor and comply with, and cause the Company and each of Purchaser’s officersits Subsidiaries to honor and comply with, directorsall provisions granting such rights, employeesand (ii) shall not, partners, agents and affiliates for loss or damage or expenses (including reasonable attorneys fees) arising as a result of or related to (a) any breach or alleged breach by shall not permit the Company of or any of its representations Subsidiaries to amend, repeal or covenants set forth hereinmodify any provision in the respective organizational documents of such Company or Subsidiary or the Company LLC Agreement relating to the exculpation or indemnification of any Covered Person (unless required by law), it being the intent of the Parties that the Covered Persons shall continue to be entitled to such exculpation and indemnification to the full extent of the law. (b) any cause of actionIn the event that after the Closing Date, suit or claim brought or made against Purchaser and arising out of or resulting from Buyer, the execution, delivery, performance or enforcement of the Investment Agreements Company or any Subsidiary, or their respective successors or assigns, (i) consolidates with or merges into any other certificatePerson and shall not be the continuing or surviving corporation or entity in such consolidation or merger, instrument or document contemplated hereby (ii) transfers all or therebysubstantially all of its properties and assets to any Person, then, and in each case, proper provision shall be made so that the successors and assigns of Buyer, such Company or the Subsidiaries, as the case may be, honor the indemnification and other obligations of such Persons, including without limitation under this Section 6.7. (c) any cause of actionThis Section 6.7 shall be for the benefit of, suit or claim brought or made against Purchaser that Purchaser has acted in concert with any other person by virtue of the negotiation, execution, delivery, performance or enforcement of the Investment Agreements or any other certificate, instrument or document contemplated hereby or thereby, or the consummation of the transactions contemplated herein or therein (d) any transaction financed or to and shall be financed in whole or in part, directly or indirectly, with the proceeds of the issuance of the Securities or (e) the status of Purchaser or holder of the Securities as an investor in the Company. To the extent that the foregoing undertaking by the Company may be unenforceable for any reasonenforceable by, the Company shall make the maximum contribution to the payment and satisfaction of each of the indemnified liabilities which is permissible under applicable law. Notwithstanding, in no event shall the Company be required to indemnify Purchaser for any claims to the extent that a court of competent jurisdiction shall have determined by a final judgment that such claims had arisen or were the result of Purchaser’s misconduct, including without limitation, violations of law, breach by Purchaser of a contract with a third party, or negligence. After receipt by Purchaser of notice of any action, proceeding or claim subject to the indemnification provisions herein (each event a “Circumstance”), Purchaser shall promptly give the Company notice describing the Circumstance. The Company shall have the right (without prejudice to the right of Purchaser to participate at its own expense through counsel of its own choosing) to defend or prosecute such claim at their expense and through counsel of their own choosing if they give written notice of their intention to do so no later than the time by which the interest of Purchaser would be materially prejudiced as a result of its failure to have received such notice; provided, however, that if the defendants in any action shall include both the Company and PurchaserCovered Persons, and Purchaser shall have reasonably concluded that counsel selected by the Company has a conflict each such Person’s respective heirs and estate, all of interest because of the availability of different or additional defenses to Purchaser, Purchaser shall cooperate fully in the defense of such claim and shall make available to the Company pertinent information under its control relating thereto, but whom shall be entitled to be reimbursed, as provided in this Section 8, for all costs and expense incurred by it in connection therewith; provided, however, that such reimbursement shall not apply to amounts paid in settlement of any claim if such settlement is effected without the prior written consent of the Company, which consent shall not be unreasonably withheld. The failure to deliver written notice to the Company within a reasonable time of the commencement of any such Circumstance shall not relieve the Company of any liability to Purchaser under this Section 4.15, except to the extent that the Company is actually prejudiced in its ability to defend such actionexpress third-party beneficiaries hereof.