Common use of Director and Officer Indemnification and Insurance Clause in Contracts

Director and Officer Indemnification and Insurance. (a) Buyer agrees that all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Business.

Director and Officer Indemnification and Insurance. (a) Buyer From and after the Effective Time, Acquiror agrees that all rights it shall, and shall cause the Company and AG LLC, to exculpation, indemnification indemnify and advancement of expenses pursuant to the Organizational Documents hold harmless each present and former director and officer of the Acquired Companies Company and AG LLC against any costs or expenses (including attorneys’ fees and disbursements), judgments, fines, losses, claims, damages or liabilities incurred in connection with any indemnification agreement Action, whether civil, criminal, administrative or investigative, arising out of or pertaining to which any D&O Indemnified Person is party for acts matters existing or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing DateEffective Time, whether asserted or claimed prior to, on at or after the Closing Date Effective Time, to the fullest extent that the Company or AG LLC, as the case may be, would have been permitted under applicable Law and its respective certificate of formation, operating agreement or other organizational documents and agreements in effect on the date of this Agreement to indemnify such person (including the advancing of expenses as incurred to the fullest extent permitted under applicable Law). Without limiting the foregoing, (i) Acquiror shall cause the Surviving Entity and each of its Subsidiaries (A) to maintain for a period of not less than six (6) years from the Effective Time provisions in its certification of formation, operating agreement and other organizational documents or agreements concerning the indemnification and exoneration (including provisions relating to expense advancement) of the Company’s and AG LLC’s former and current officers, directors, employees, and agents that are no less favorable to those Persons than the provisions of the certificates of formation, operating agreements and other organizational documents and agreements of the Company or AG LLC, as applicable, in each case, as of the date of this Agreement and (B) not to amend, repeal or otherwise modify such provisions in any respect that would adversely affect the rights of those Persons thereunder, in each case, except as required by Law and (ii) Acquiror agrees that (x) the covenants contained in this Section 6.2 are intended to be for the benefit of, and shall be enforceable by, each of the current and former directors and officers specified in this Section 6.2 and their respective heirs and (y) any indemnification and advancement of expenses available to any current or former director of the Company or AG LLC by virtue of such current or former director’s service as a partner or employee of any investment fund that is an Affiliate or equity owner of the Company prior to the Closing (any such current or former manager, a “Sponsor Manager”) shall be secondary to the indemnification and advancement of expenses to be provided by Acquiror, the Surviving Entity and its Subsidiaries pursuant to this Section 6.2 and that Acquiror, the Surviving Entity and its Subsidiaries (A) shall be the primary indemnitors of first resort for Sponsor Managers pursuant to this Section 6.2, (B) shall be fully responsible for the advancement of all expenses and the payment of all losses, damages and other costs and expenses (including attorneys’ fees and disbursements) with respect to Sponsor Managers which are addressed by this Section 6.2 and (C) shall not make any claim for contribution, subrogation or any other recovery of any kind in respect of any matters arising in connection other indemnification available to any Sponsor Manager with respect to any matter addressed by this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unlessSection 6.2. Acquiror shall assume, and only to the extent, required by applicable Law or Order be jointly and (B) Buyer shallseverally liable for, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any directorhonor, officer, employee or other fiduciary each of an Acquired Company to the extent such conduct relates to the Businesscovenants in this Section 6.2.

Director and Officer Indemnification and Insurance. The Merger Agreement provides that for a period of 6 years from and after the Acceptance Time, Parent shall (aor shall cause the Surviving Corporation to) Buyer agrees that all rights to exculpation, provide indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party exculpation for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person person who is now, now or who has been at any time prior to the date hereof, of the Merger Agreement or who becomes prior to the ClosingEffective Time an officer or director of MGF or any of its subsidiaries (the “Indemnified Parties”), a directorwhich is at least as favorable to such person as the exculpation and indemnification provided to the Indemnified Parties by MGF and its subsidiaries as of October 8, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect2009. For a period of six (6) 6 years after the ClosingAcceptance Time, Parent shall (Aor shall cause the Surviving Corporation to) Buyer shall not, either (i) maintain the current policy of MGF’s directors’ and shall not permit any Acquired Company to, without officers’ fiduciary liability insurance (the prior written consent of the relevant “Current D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with Policy”) covering acts or omissions occurring on at or prior to the Closing DateAcceptance Time with the respect to those persons who are currently covered by the Current D&O Policy or those person who, whether asserted prior to the Effective Time, are designated to fill any vacancies on the MGF Board, or claimed (ii) obtain, in consultation with MGF, a prepaid directors’ and officers’ liability insurance policy covering acts and omissions at or prior to, on to the Acceptance Time with respect to those persons who are currently covered by the Current D&O Policy that is no less favorable to such indemnified persons than those of the Current D&O Policy. The obligations set forth above do not extend or after otherwise increase the Closing Date (including in respect obligations of MGF to provide coverage for acts or omissions of directors or officers of any matters arising entity acquired by MGF prior to October 8, 2009 beyond the terms provided for in connection the agreements with this Agreement respect to such transactions. In accordance with the Merger Agreement, (i) Parent may substitute one or more policies for the Current D&O Policy, so long as such substitute policies have at least the same coverage and amounts and contain terms and conditions which are no less advantageous to the transactions contemplated hereby and persons currently covered by the Ancillary Agreements), unless, and only Current D&O Policy; (ii) Parent will not be required to pay any annual premium for the extent, required by applicable Law Current D&O Policy or Order any substitutes with respect thereto in excess of 250% of the current annual premium; and (Biii) Buyer shall, and shall cause if the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any premium for the Current D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer Policy or any of its Subsidiaries (including substitutes therefor exceeds such amount, Parent will purchase a substitute policy with the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller greatest coverage available for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Business250% amount.

Director and Officer Indemnification and Insurance. (a) Buyer Vodafone agrees that all rights to exculpation, indemnification and advancement all limitations on liability existing in favor of expenses pursuant to the Organizational Documents any Indemnitee (as defined below) in respect of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring Indemnitees on or prior to the Closing Date, whether asserted Effective Time as provided in the certificate of incorporation and by-laws of AirTouch and each of its Subsidiaries or claimed prior to, on an agreement between an Indemnitee and AirTouch or after any of its Subsidiaries in effect as of the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and date hereof shall cause the Acquired Companies to, maintain continue in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their termsthe terms thereof. Seller will (b) For six years after the Effective Time, Vodafone shall indemnify Buyer for any amounts required and hold harmless the individuals who on or prior to be paid by Buyer the Effective Time were officers or directors or agents of AirTouch or any of its Subsidiaries (including the Acquired Companies"INDEMNITEES") in respect of any to the same extent indemnification is provided as of the foregoing matters date hereof with respect to all actions or omissions by them in their capacities as officers or directors or agents of AirTouch, or taken by them at the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller request of, AirTouch or any of its Subsidiaries Subsidiaries. In the event any claim in respect of which indemnification is available pursuant to any directorthe foregoing provisions is asserted or made within the period specified in the previous sentence, officerall rights to indemnification shall continue until such claim is disposed of or all judgments, employee orders, decrees or other fiduciary rulings in connection with such claim are duly satisfied. (c) For six years after the Effective Time, Vodafone shall procure the provision of an Acquired Company officers' and directors' liability insurance in respect of acts or omissions occurring prior to the extent Effective Time covering each such conduct relates Person currently covered by AirTouch's officers' and directors' liability insurance on terms with respect to coverage and in amounts no less favorable than those of such policy in effect on the Businessdate hereof; PROVIDED, HOWEVER, that during such period, Vodafone shall not be required to procure any coverage in excess of the amount that can be obtained for the remainder of such period for an annual premium of 150% of the current annual premium paid by AirTouch for its existing coverage. (d) The obligations of Vodafone under this Section 3.8.2. shall not be terminated or modified in such a manner as to adversely affect any Indemnitee to whom this Section 3.8.2. applies without the consent of such affected Indemnitee (it being expressly agreed that the Indemnitees to whom this Section 3.8.2. applies shall be third party beneficiaries of this Section 3.8.2.). 3.8.3.

Director and Officer Indemnification and Insurance. Under the Merger Agreement, beginning at the Effective Time, Parent will cause the Surviving Corporation to indemnify, defend and hold harmless, and will advance expenses as incurred (aprovided that TABLE OF CONTENTS the indemnitee to whom expenses are advanced provides an undertaking to repay such amounts if it is ultimately determined by a court of competent jurisdiction that such indemnitee is not entitled to indemnification for such matter), to the extent provided in (i) Buyer agrees Science 37’s charter, Science 37’s bylaws or similar organizational documents of any of its subsidiaries in effect as of the date of the Merger Agreement and (ii) any indemnification contract of Science 37 or any of its subsidiaries in effect as of the date of the Merger Agreement, each present and former director and officer of Science 37 and its subsidiaries and each of their respective employees who serves as a fiduciary of a Science 37 benefit plan (in each case, when acting in such capacity) (each an “Indemnitee” and collectively, the “Indemnitees”) against any costs or expenses (including reasonable attorneys’ fees), judgments, settlements, fines, losses, claims, damages or liabilities incurred in connection with any proceeding or investigation, whether civil or criminal, administrative or investigative, arising out of or pertaining to any action or omission by such Indemnitee relating to their position with Science 37 or its subsidiaries, occurring at or prior to the Effective Time, including in connection with the Merger Agreement or the Transactions. Under the Merger Agreement, Parent agreed that all rights to exculpation, indemnification or advancement of expenses arising from, relating to, or otherwise in respect of, acts or omissions occurring prior to the Effective Time (including in connection with the Merger Agreement or the Transactions) existing as of the Effective Time in favor of an Indemnitee as provided in (i) Science 37’s charter, Science 37’s bylaws or similar organizational documents any of its subsidiaries in effect as of the date of the Merger Agreement and (ii) any indemnification contract of Science 37 or its subsidiaries in effect as of the date of the Merger Agreement, will survive the Merger and continue in full force and effect in accordance with their terms. For a period of no less than six years from the Effective Time, Parent will cause the Surviving Corporation to, and Surviving Corporation will, maintain in effect the exculpation, indemnification and advancement of expenses provisions in favor of an Indemnitee as provided in (i) Science 37’s charter, Science 37’s bylaws or similar organizational documents in effect as the date of the Merger Agreement and (ii) any indemnification contract of Science 37 or its subsidiaries in effect as of the date of the Merger Agreement with any Indemnitee, and will not amend, repeal or otherwise modify any such provisions in any manner that would adversely affect the rights thereunder of any individuals who immediately before the Effective Time were Indemnitees; provided, however, that all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection proceeding pending or asserted or any claim made within such period will continue until the final disposition of such proceeding or claim. Concurrently with this Agreement the execution of the Merger Agreement, Science 37 obtained a binder for a prepaid “tail” policy for Science 37’s existing directors’ and the transactions contemplated hereby officers’ liability insurance and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time fiduciary insurance for events occurring prior to the date hereofEffective Time, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person be paid for and to become effective at the request of Effective Time and to provide coverage for an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a aggregate period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse years. Parent is required to cause such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating insurance to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain be maintained in full force and effect any indemnification agreements between any Acquired Company for its full term and any D&O Indemnified Person in accordance with their termsto cause the Surviving Corporation to honor all obligations thereunder. Seller will indemnify Buyer for any amounts required to be paid by Buyer In the event that either Parent or the Surviving Corporation or any of its Subsidiaries successors or assigns (i) consolidates with or merges into any other person and is not the continuing or Surviving Corporation or entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any person, then, and in each case, Parent will, and will cause the Surviving Corporation to, cause proper provisions to be made so that the successor or assign will expressly assume the indemnification obligations set forth in the Merger Agreement. Regulatory Matters Science 37 and Parent will cooperate in good faith to develop the strategy and process by which the parties will communicate with all governmental entities regarding any plans or strategies to ensure compliance with applicable Health Care Laws (collectively, the “Regulatory Matters”). To the extent permitted by applicable law, Science 37 will (a) give Parent prompt notice upon obtaining knowledge of any written request, inquiry or communication from or by the U.S. Food and Drug Administration (“FDA”) in connection with any such Regulatory Matters, (b) keep Parent reasonably informed in a timely manner as to the status of any such request, inquiry or communication, and (c) permit Parent to review any material communication delivered to, and consult with Parent in advance of any meeting or conference with, the FDA relating to such Regulatory Matters. Science 37 will also consult and cooperate with Parent and consider in good faith TABLE OF CONTENTS the reasonable views of Parent, in connection with, and provide to Parent in advance, any responses, materials, analyses, presentations, memoranda, or proposals to be made or submitted to the FDA in connection with the Regulatory Matters. Section 14d-10 Matters Parent and Science 37 acknowledged that certain compensatory payments or benefits have been granted or will be granted according to employment compensation, severance and other employee benefit plans of Science 37, including the Acquired Companies) in respect Company Benefit Plans (collectively, the “Arrangements”), to certain holders of any Shares and Company equity awards. Science 37’s Compensation Committee has approved each of the foregoing matters Arrangements as an “employee compensation, severance or other employee benefit arrangement” within the meaning of Rule 14d-10(d)(1) under the Exchange Act and has taken all other actions necessary to satisfy the extent the conduct requirements of the applicable D&O Indemnified Person relates non-exclusive safe harbor under Rule 14d-10(d)(2) under the Exchange Act with respect to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessArrangements.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that From and after the Effective Time, the Surviving Corporation shall comply with all rights obligations of the Company in existence or in effect as of the Closing Date, under applicable Regulations, their respective organizational documents or by contract, to exculpationindemnify, indemnification defend, reimburse and advancement of hold harmless, and also advance expenses pursuant as incurred, to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior fullest extent permitted under applicable Regulations to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, now or who has been at any time prior to the date hereofClosing Date, or who becomes prior to the ClosingEffective Time, a director, officer, employee an officer or other fiduciary director of an Acquired the Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at (the request of an Acquired Company or the Business (each, a “D&O Indemnified PersonOfficers”) shall survive the Closing and the consummation against all Losses or Liabilities arising out of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts any Action based in whole or omissions in part on or arising in whole or in part out of the fact that such Person is or was an officer, director of the Company or an officer, director or similar functionary of any the Company, whether or not pertaining to any matter existing or occurring on at or prior to the Closing Date, Effective Time and whether or not asserted or claimed prior to, on at or after the Closing Date (including Effective Time; provided, however, that the Indemnified Officers to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately and finally determined by a court of competent jurisdiction and all rights of appeal have lapsed that such Indemnified Officer is not entitled to indemnification under applicable Regulation, the Company’s Governing Documents, or pursuant to this Section 6.2(a) and provided, further that the Surviving Corporation shall not be obligated to pay expenses of more than one counsel for all Indemnified Officers in respect any single Action unless, in the good faith agreement of any matters arising in connection with this Agreement Parent and the transactions contemplated hereby and by the Ancillary Agreementssuch Indemnified Officer(s), unlessa conflict of interest precludes the effective representation of more than one Equityholder Indemnified Party with respect to such Action. The parties hereto intend, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent not prohibited by applicable Regulations, that the conduct indemnification provided for in this Section 6.2 shall apply without limitation to acts or omissions (other than illegal or fraudulent acts), or alleged acts or omissions (other than alleged illegal or fraudulent acts), by the Indemnified Officers in their capacities as such, as the case may be. The obligations of the applicable D&O Surviving Corporation under this Section 6.2 shall not be amended or terminated in such a manner as to adversely affect any Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required Officer without his consent, it being understood that each Indemnified Officer, and his heirs and legal representatives, is intended to be paid by Seller a third party beneficiary of this Section 6.2 and may specifically enforce its terms. This Section 6.2 shall not limit or otherwise adversely affect any of its Subsidiaries to rights any director, officer, employee or other fiduciary of an Acquired Indemnified Officer may have under any agreement with the Company to under the extent such conduct relates to the BusinessCompany’s organizational documents.

Director and Officer Indemnification and Insurance. (a) Buyer agrees The Merger Agreement provides that all rights to exculpationindemnification, indemnification and advancement of expenses pursuant to the Organizational Documents and exculpation by Five Prime existing in favor of its current and former directors and officers as of the Acquired Companies or any indemnification agreement to which any D&O date of the Merger Agreement (the “Indemnified Person is party Persons”) for their acts or and omissions occurring at or prior to the ClosingEffective Time, whether as provided in the certificate of incorporation and bylaws of Five Prime (ias in effect as of the date of the Merger Agreement) asserted and as provided in the indemnification agreements between Five Prime and such Indemnified Persons in the forms made available by Five Prime to Amgen or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time Amgen’s Representatives prior to the date hereofof the Merger Agreement, will survive the Merger and will not be amended, repealed or who becomes prior otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons, and will be observed by Amgen, the Surviving Corporation and their successors and assigns to the Closing, a director, officer, employee or other fiduciary fullest extent available under the laws of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For Delaware for a period of six (6) years from the Effective Time. From and after the ClosingEffective Time until its sixth (6th) anniversary, Amgen and the Surviving Corporation (Atogether with their successors and assigns, the “Indemnifying Parties”) Buyer shall notwill, to the fullest extent permitted under applicable laws and shall not permit any Acquired Company to, without the prior written consent certificate of incorporation and bylaws of Five Prime (as in effect as of the relevant D&O Indemnified Personsdate of the Merger Agreement), amend, repeal or modify in a manner adverse to such D&O indemnify and hold harmless each Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpationtheir capacity as an officer or director of Five Prime against all losses, indemnification claims, damages, liabilities, fees, expenses, judgments or advancement of expenses with respect to any D&O fines incurred by such Indemnified Person in connection with acts any pending or omissions occurring threatened legal proceeding based on or arising out of, in whole or in part, the fact that such Indemnified Person is or was a director or officer of Five Prime at or prior to the Closing DateEffective Time and pertaining to any and all matters pending, existing or occurring at or prior to the Effective Time, whether asserted or claimed prior to, on at or after the Closing Date Effective Time, including the Transactions. Without limiting the foregoing, from the Effective Time until its sixth (6th) anniversary, the Indemnifying Parties will also, to the fullest extent permitted under applicable laws and the certificate of incorporation and bylaws of Table of Contents Five Prime (as in effect as of the date of the Merger Agreement), advance reasonable and documented out-of-pocket costs and expenses (including in respect of any matters arising reasonable and documented attorneys’ fees) incurred by the Indemnified Persons in connection with this matters for which such Indemnified Persons are eligible to be indemnified pursuant to the Merger Agreement, subject to the execution by such Indemnified Persons of appropriate undertakings to repay such advanced costs and expenses if it is ultimately determined in a final and non-appealable judgment of a court of competent jurisdiction that such Indemnified Person is not entitled to be indemnified. The Merger Agreement requires that either (a) the Surviving Corporation maintain in effect, from the Effective Time until its sixth (6th) anniversary, the current policy of directors’ and officers’ liability insurance maintained by Five Prime as of the transactions contemplated hereby date of the Merger Agreement for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and by omissions occurring prior to the Ancillary AgreementsEffective Time in their capacities as directors and officers of Five Prime (as applicable), unlesson terms with respect to coverage, deductibles and only amounts no less favorable than the existing policy, or (b) at or prior to the extentEffective Time, Amgen or Five Prime (through a nationally recognized insurance broker approved by Amgen (such approval not to be unreasonably withheld, conditioned or delayed)) purchase a six (6)-year “tail” policy for the existing policy effective as of the Effective Time. However, in no event will the Surviving Corporation be required to expend in any one year an amount in excess of 300% of the annual premium currently payable by applicable Law or Order and (B) Buyer shallFive Prime with respect to its current policy, and it being understood that if the annual premiums payable for such insurance coverage exceed such amount, Amgen shall be obligated to cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance Surviving Corporation to obtain a policy with their termsthe greatest coverage available for a cost equal to such amount. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any Conditions of the foregoing matters to the extent the conduct Offer See Section 15—“Conditions of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessOffer.”

Director and Officer Indemnification and Insurance. (a) Buyer agrees that For six years from and after the Effective Time, Tyler shall, and shall cause the Surviving Corporation to, indemnify and hold harmless all rights to exculpationpast and present directors and officers of NIC and the NIC Subsidiaries (collectively, indemnification the “Indemnified Parties”) against any costs or expenses (including advancing attorneys’ fees and advancement of expenses pursuant prior to the Organizational final disposition of any actual or threatened claim, suit, Proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable Law and the NIC Governing Documents or the organizational documents of the Acquired Companies or applicable NIC Subsidiary (as applicable); provided that such Indemnified Party agrees in advance to return any indemnification agreement such funds to which a court of competent jurisdiction determines in a final, nonappealable judgment that such Indemnified Party is not ultimately entitled), judgments, fines, losses, claims, damages, liabilities, and amounts paid in settlement in connection with any D&O Indemnified Person is party for actual or threatened Proceeding in respect of acts or omissions occurring or alleged to have occurred at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date Effective Time (including in respect of any matters arising acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit Merger or any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Dateother Transactions), whether asserted or claimed prior to, on at, or after the Closing Date (including in respect of any matters arising Effective Time, in connection with this Agreement and such Persons serving as a director, officer, employee, or other fiduciary of NIC or any NIC Subsidiary or of any other Person if such service was at the transactions contemplated hereby and by request or for the Ancillary Agreements)benefit of NIC or any NIC Subsidiary, unless, and only to the extent, required fullest extent permitted by applicable Law and the NIC Governing Documents or Order the organizational documents of the applicable NIC Subsidiary (as applicable) or any indemnification agreements with such Persons in existence on the date of this Agreement as set forth on Section 6.8(a) of the NIC Disclosure Letter and made available to Tyler prior to the date of this Agreement or filed or furnished by NIC with the SEC and publicly available prior to the date of this Agreement. The Parties agree that all rights to elimination of liability, indemnification, and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the Indemnified Parties as provided in the NIC Governing Documents or the organizational documents of the applicable NIC Subsidiary (Bas applicable) Buyer shallor in any indemnification agreement of NIC or a NIC Subsidiary with any Indemnified Party in existence on the date of this Agreement as set forth on Section 6.8(a) of the NIC Disclosure Letter and made available to Tyler prior to the date of this Agreement or filed or furnished by NIC with the SEC and publicly available prior to the date of this Agreement shall survive the Transactions, including the Merger, and shall cause the Acquired Companies to, maintain continue in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their termsthe terms thereof, and shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of such Indemnified Parties. Seller will indemnify Buyer for Notwithstanding anything herein to the contrary, if any amounts required Indemnified Party notifies the Surviving Corporation on or prior to be paid by Buyer or any the sixth anniversary of its Subsidiaries (including the Acquired Companies) Effective Time of a matter in respect of any which such Person intends in good faith to seek elimination of liability, indemnification or advancement of expenses pursuant to this Section 6.8, the foregoing matters provisions of this Section 6.8 shall continue in effect with respect to such matter until the extent the conduct final disposition of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Businessall Proceedings relating thereto.

Director and Officer Indemnification and Insurance. (a) Buyer Each of the Purchaser and Parent agrees that all rights to exculpationindemnification, indemnification exculpation and advancement of expenses pursuant to now existing in favour of the Organizational Documents directors and officers of the Acquired Companies, as provided in their respective Governing Documents, or otherwise in any written agreement with the Acquired Companies or in effect as of the date hereof and made available to the Purchaser with respect to any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions matters occurring at or prior to the ClosingClosing Date, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain shall continue in full force and effect. For effect for a period of six (6) years following the Closing and that the Purchaser shall, from and after the ClosingClosing Date, (A) Buyer cause the Acquired Companies to perform and discharge its obligations to provide such indemnification, exculpation and advancement of expenses, except in the case of fraud, fraudulent or willful misconduct or intentional or gross fault of such director or officer. To the maximum extent permitted by Applicable Law, such indemnification shall notbe mandatory rather than permissive, and shall not permit any the Purchaser shall, from and after the Closing Date, cause the Acquired Company toCompanies to advance expenses in connection with such indemnification as provided in their respective Governing Documents or other applicable agreements. The indemnification, without the prior written consent of the relevant D&O Indemnified Personsliability limitation, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification exculpation or advancement of expenses with respect provisions of the Acquired Companies’ Governing Documents provided to the Purchaser shall not be amended, repealed or otherwise modified after the Closing Date in any D&O Indemnified Person in connection with acts manner that would adversely affect the rights thereunder of individuals who, as of the Closing Date or omissions occurring on or at any time prior to the Closing Date, whether asserted were directors or claimed prior to, on or after the Closing Date (including in respect officers of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts , unless such modification is required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessApplicable Law.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that Pursuant to the Merger Agreement, all rights to exculpationindemnification, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party and exculpation from liabilities for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) Effective Time now existing or (iii) arising prior to Closing, in favor of each Person who is nowthe current or former directors, officers or employees of the Company and its subsidiaries (collectively, "Indemnified Persons") as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of the Merger Agreement, or who has been at pursuant to any time such contract entered into after its execution with Xxxxxx's prior written consent, will be assumed by the surviving corporation in the Merger and survive the Merger, and will be observed by the Surviving Corporation and its subsidiaries to the date hereof, or who becomes prior to fullest extent available under applicable laws for a period of six years from the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing Effective Time and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain will continue in full force and effecteffect in accordance with their terms (and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons), and Parent will cause the surviving corporation in the Merger to comply with and honor the foregoing obligations. The Merger Agreement requires the Company to use its reasonable best efforts, prior to closing, to purchase (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) a "tail" insurance policy with a claims period of six years from the Effective Time with respect to directors' and officers' liability insurance for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Company (as applicable), on terms with respect to coverage, deductibles and amounts no less favorable in the aggregate than the policy in effect on the date of the Merger Agreement and at a price, with respect to the entire six-year period following the Effective Time, not to exceed 300% of the annual premium currently payable by the Company with respect to such current policy. If the Company fails to purchase such "tail" policy prior to the closing of the Merger, Parent will purchase, or cause to be purchased, the above-mentioned "tail" insurance policy; provided that, that in no event will Parent be required to pay an amount, with respect to the entire six-year period following the Effective Time, in excess of 300% of the annual premium currently payable by the Company with respect to such current policy, it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, Parent will be obligated to cause the surviving corporation in the Merger to obtain a policy with the greatest coverage available for a cost equal to such amount. For a period of six (6) years after the ClosingEffective Time, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify Parent will cause to be maintained in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Businessinsurance policy.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies Company, or any indemnification agreement of the Company set forth on Section 5.11(a) of the Seller Disclosure Schedules to which any D&O Indemnified Person (as defined below) is party party, for acts or omissions occurring at on or prior to the ClosingClosing Date, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreementshereby), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee director or other fiduciary officer of an Acquired the Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, solely in their capacity as such, a “D&O Indemnified Person”) shall survive the Closing Date and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements hereby and remain in full force and effect. For a period of at least six (6) years after the ClosingClosing Date, (A) Buyer shall not, and shall not permit any Acquired the Company to, without the prior written consent of the relevant D&O Indemnified Persons, adversely amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired the Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreementshereby), unlessit being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such rights of exculpation, indemnification and advancement of expenses to the fullest extent permitted by applicable Law, and only to that no change, modification or amendment of such documents or arrangements may be made that will adversely affect any such D&O Indemnified Person’s rights thereto without the extent, required by applicable Law or Order prior written consent of such D&O Indemnified Person and (B) Buyer shall, and shall cause the Acquired Companies Company to, maintain in full force and effect any indemnification agreements between any Acquired of the Company and any set forth on Section 5.11(a) of the Seller Disclosure Schedules with a D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessPerson.

Director and Officer Indemnification and Insurance. (a) Buyer The Purchaser agrees that all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or OMA or any indemnification agreement to which any D&O Indemnified Person is a party (true, complete, and correct copies of which have been made available to the Purchaser), in each case, as in effect as of the date of this Agreement, for acts or omissions occurring at on or prior to the ClosingClosing Date, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary AgreementsTransactions), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business OMA (each, a “D&O Indemnified Person”) shall survive the Closing Date and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements Transactions and remain in full force and effecteffect for a period of at least six (6) years following the Closing Date. For a period of six (6) years after the ClosingClosing Date, (A) Buyer the Purchaser shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s the Organizational Documents of the Acquired Companies or OMA relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary AgreementsTransactions), unless, and only to the extent, required by applicable Law Law, it being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent permitted by applicable Law, and that no change, modification or Order amendment of such documents or arrangements may be made that will materially and adversely affect any such D&O Indemnified Person’s rights thereto without the prior written consent of such D&O Indemnified Person, and (B) Buyer the Purchaser shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between of any Acquired Company and OMA with any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessPerson.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that it shall, and shall cause the Companies to maintain and fulfill, in each case after the Closing, all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of any of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party party, in each case as in effect immediately prior to the Closing, for acts or omissions occurring at on or prior to the ClosingClosing Date, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreementshereby), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired any Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect). For a period of at least six (6) years after the ClosingClosing Date, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreementshereby), unless, and only to the extent, required by applicable Law Law, it being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent permitted by applicable Law, and that no change, modification or Order amendment of such documents or arrangements may be made that will adversely affect any such D&O Indemnified Person’s rights thereto without the prior written consent of such D&O Indemnified Person, and (B) Buyer shall, and shall cause the Acquired Companies each Company to, maintain in full force and effect any indemnification agreements between of any Acquired such Company and with any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessPerson.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies Companies, or any indemnification agreement to which any D&O Indemnified Person (as defined below) is party and provided to Buyer prior to the date hereof, for acts or omissions occurring at on or prior to the ClosingClosing Date, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreementshereby), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee director or other fiduciary officer of an Acquired Group Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing Date and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements hereby and remain in full force and effect. For a period of at least six (6) years after the ClosingClosing Date, (A) Buyer shall not, and shall not permit any Acquired Group Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Group Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreementshereby), unlessit being the intent of the Parties that all such D&O Indemnified Persons shall continue to be entitled to such exculpation, indemnification and advancement of expenses to the fullest extent permitted by applicable Law, and only to that no change, modification or amendment of such documents or arrangements may be made that will adversely affect any such D&O Indemnified Person’s rights thereto without the extent, required by applicable Law or Order prior written consent of such D&O Indemnified Person and (B) Buyer shall, and shall cause the Acquired Group Companies to, maintain in full force and effect any indemnification agreements between provided to Buyer prior to the date hereof of any Acquired Group Company and any with a D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessPerson.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that From and after the Purchase Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all rights obligations of the Company, and cause its subsidiaries to exculpationmaintain in effect all such obligations owed by them, to each individual who at the Effective Time is, or any time prior to the Effective Time was, a director, officer or employee of the Company or any of its subsidiaries (the "INDEMNITEES") in respect of indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party exculpation from liabilities for acts or omissions occurring at or prior to the Closing, whether Effective Time as provided in (ix) asserted the Company Charter Documents (or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement predecessor documents) and the transactions contemplated hereby organizational documents of such subsidiaries as currently in effect and by (y) the Ancillary Agreements)indemnification agreements listed on Section 5.7(a) of the Company Disclosure Schedule, (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) which shall survive the Closing Merger and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain continue in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their respective terms. Seller will indemnify Buyer for Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation and its subsidiaries to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay any amounts required to be paid by Buyer or any of its Subsidiaries expenses (including the Acquired Companiesfees and expenses of legal counsel) in respect of any of Indemnitee in connection with enforcing the foregoing matters indemnity and other obligations provided for in this Section 5.7 as incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent the conduct of the required by applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessLaw.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that From and after the Effective Time, Parent shall cause the Surviving Corporation to comply with all rights obligations of the Company and the other Acquired Entities in existence or in effect as of the Agreement Date, under applicable Regulations, their respective organizational documents or by contract, to exculpationindemnify, indemnification defend and advancement of hold harmless, and also advance expenses pursuant as incurred, to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior fullest extent permitted under applicable Regulations to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, now or who has been at any time prior to the date hereofAgreement Date, or who becomes prior to the ClosingEffective Time, an officer or director of the Company, or any officer or director of, or is otherwise serving in a directorsimilar function for, officer, employee or any other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at (the request of an Acquired Company or the Business (each, a “D&O Indemnified PersonOfficers”) shall survive the Closing and the consummation against all Losses or Liabilities arising out of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts any Action or omissions investigation based in whole or in part on or arising in whole or in part out of the fact that such Person is or was an officer, director of the Company or an officer, director or similar functionary of any other Acquired Entity, whether or not pertaining to any matter existing or occurring on at or prior to the Closing Date, Effective Time and whether or not asserted or claimed prior to, on at or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements)Effective Time. The parties hereto intend, unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent not prohibited by applicable Regulations, that the conduct indemnification provided for in this Section 6.2 shall apply without limitation to acts or omissions (other than illegal or fraudulent acts), or alleged acts or omissions (other than alleged illegal or fraudulent acts), by the Indemnified Officers in their capacities as such, as the case may be. The obligations of Parent and the applicable D&O Acquired Entities under this Section 6.2 shall not be amended or terminated in such a manner as to adversely affect any Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required Officer without his consent, it being understood that each Indemnified Officer, and his heirs and legal representatives, is intended to be paid by Seller a third party beneficiary of this Section 6.2 and may specifically enforce its terms. This Section 6.2 shall not limit or otherwise adversely affect any rights any Indemnified Officer may have under any agreement with the Company or any of its Subsidiaries to other Acquired Entity under the Company’s or any director, officer, employee or such other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessEntity’s organizational documents.

Director and Officer Indemnification and Insurance. (a) Buyer agrees For six years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless all past and present directors and officers of the Company and the Company Subsidiaries and all current and former holders of security holders of the Company that all rights have or had a right to exculpation, indemnification and advancement appoint any of expenses the foregoing (the persons entitled to be indemnified pursuant to the Organizational Documents such provisions, and all other current and former directors, managers and officers of the Acquired Companies Company and the Company Subsidiaries, and all current and former holders of securities of the Company or any indemnification agreement Company Subsidiary that have or had a right to which appoint any D&O of the foregoing, being referred to collectively as the “Indemnified Person is party for Parties”) against any costs or expenses (including advancing attorneys’ fees and expenses prior to the final disposition of any actual or threatened claim, suit, Proceeding or investigation to each Indemnified Party to the fullest extent permitted by applicable Law or the Company Governing Documents or the organizational documents of the applicable Company Subsidiary (as applicable)), judgments, fines, losses, claims, damages, liabilities, and amounts paid in settlement in connection with any actual or threatened Proceeding in respect of acts or omissions occurring or alleged to have occurred at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date Effective Time (including in respect of any matters arising acts or omissions occurring in connection with the approval of this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit Merger or any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Dateother Transactions), whether asserted or claimed prior to, on at, or after the Closing Date (including in respect of any matters arising Effective Time, in connection with such Persons serving as a director, officer, employee, or other fiduciary of the Company or any Company Subsidiary or of any other Person if such service was at the request or for the benefit of the Company or any Company Subsidiary, to the fullest extent permitted by applicable Law or the Company Governing Documents or the organizational documents of the applicable Company Subsidiary (as applicable) or any indemnification agreements with such Persons in existence on the date of this Agreement Agreement. The Parties agree that all rights to elimination of liability, indemnification, and advancement of expenses for acts or omissions occurring or alleged to have occurred at or prior to the transactions contemplated hereby Effective Time, whether asserted or claimed prior to, at or after the Effective Time, now existing in favor of the Indemnified Parties as provided in the Company Governing Documents or the organizational documents of the applicable Company Subsidiary (as applicable) or in any indemnification agreement of the Company or a Company Subsidiary with any Indemnified Party in existence on the date of this Agreement, shall continue in full force and by effect in accordance with the Ancillary Agreements)terms thereof, unlessand shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of such Indemnified Parties, except to the extent, and only to the extent, required by applicable Law Law. Notwithstanding anything herein to the contrary, if any Indemnified Party notifies the Surviving Corporation on or Order and (B) Buyer shall, and shall cause prior to the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any sixth anniversary of its Subsidiaries (including the Acquired Companies) Effective Time of a matter in respect of any which such Person intends in good faith to seek elimination of liability, indemnification or advancement of expenses pursuant to this Section 6.13, the foregoing matters provisions of this Section 6.13 shall continue in effect with respect to such matter until the extent the conduct final disposition of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Businessall Proceedings relating thereto.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that all rights to exculpation, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the ClosingClosing Date, (A) Buyer shall notthe Parent agrees that it will, and shall not permit any Acquired Company will cause the Surviving Corporation to, without the prior written consent indemnify and hold harmless each individual who served as a director or officer of the relevant D&O Indemnified Persons, amend, repeal Target or modify in a manner adverse to such D&O Indemnified Person any provision in of its Subsidiaries at any Acquired Company’s Organizational Documents relating time prior to the exculpationClosing Date against any costs or expenses (including attorneys’ fees), indemnification judgments, fines, losses, claims, damages, liabilities or advancement of expenses with respect to any D&O Indemnified Person amounts paid in settlement incurred in connection with acts any claim, whether civil, criminal, administrative or omissions investigative, arising out of or pertaining to matters existing or occurring on at or prior to the Closing Date, whether asserted or claimed prior to, on at or after the Closing Date Date, to the fullest extent permitted under Delaware law (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby Parent and by the Ancillary Agreements), unless, and only Surviving Corporation shall also advance expenses as incurred to the extentfullest extent permitted under Delaware law, required by applicable Law provided the former director or Order officer to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such former director or officer is not entitled to indemnification). All of such rights to indemnification and (B) Buyer shall, and to receive expense advances shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person be in accordance with their termsthe provisions of the Organizational Documents of the Surviving Corporation, which such provisions shall be no less favorable than the comparable provisions of the Organizational Documents of the Target as of the date of this Agreement. Seller will indemnify Buyer The Parent shall cause (i) to be maintained in effect for any amounts a period of six (6) years after the Closing Date the current policies of directors’ and officers’ liability insurance maintained by the Target and its Subsidiaries with respect to matters occurring at or prior to the Closing; provided, that the Parent may substitute therefor policies of at least the same coverage containing terms and conditions that are not less advantageous in the aggregate than the existing policies; provided, further, that during such period, the Parent and the Surviving Corporation and its Subsidiaries shall in no event be required to be expend pursuant to the foregoing clause (i) or the proviso thereto more than an amount per year equal to 300% of the current annual premium paid by Buyer or any of its Subsidiaries the Target for such insurance (including which premium the Acquired Companies) in respect of any Target represents and warrants to be not more than $72,000 per annum), and if the aggregate annual premium would exceed such amount, the Surviving Corporation shall provide the coverage which shall then be available at an aggregate annual premium equal to 300% of the foregoing current annual premium, or (ii) to be purchased six (6) year tail insurance covering each Person currently covered by the Target’s or its Subsidiaries’ existing directors’ and officers’ liability insurance policies with respect to matters occurring at or prior to the extent Closing, and such policies shall provide substantially similar coverage as is provided for the conduct of Persons who are covered by the applicable D&O Indemnified Person relates to Target’s and its Subsidiaries’ existing policies. The indemnification set forth in this Section 7.2 shall be exempt from the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Businesslimitations set forth in Section 11.3(c)(ii).

Director and Officer Indemnification and Insurance. (a) Buyer agrees that From and after the Effective Time, the Surviving Corporation shall assume all rights obligations of the Company with respect to exculpation, indemnification and advancement exculpation of expenses pursuant its directors and officers (the "Indemnitees") as provided in (x) the Company Charter Documents as currently in effect and (y) the indemnification agreements listed on Schedule 6.7, which shall survive the Merger and continue in full force and effect in accordance with their respective terms. Without limiting the foregoing, for the six (6) year period commencing immediately after the Effective Time, and except as prohibited by Law, the Surviving Corporation shall cause the articles of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the Organizational Documents Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the Acquired Companies date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or any indemnification agreement to which any D&O Indemnified Person is party for otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. For the six (6)-year period commencing immediately after the Effective Time, Parent shall maintain in effect the Company's current directors' and officers' liability insurance covering acts or omissions occurring at or prior to the ClosingEffective Time with respect to those Persons who are currently (and any additional Persons who prior to the Effective Time become) covered by the Company's directors' and officers' liability insurance policy on terms with respect to such coverage, whether and in amount, not less favorable to such Persons than those of such policy in effect on the date hereof (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same coverage in all material respects with respect to matters occurring prior to the Effective Time); provided, however, that, if the aggregate annual premiums for such insurance shall exceed the current annual premium, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be reasonably available at an annual premium not to exceed 150% of the current annual premium. The obligations of Parent and the Surviving Corporation under this Section 6.7 shall not be terminated or modified in such a manner from and after the Effective Time as to adversely affect the rights of any Indemnitee to whom this Section 6.7 applies unless the affected Indemnitee shall have consented to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.7 applies shall be third party beneficiaries of this Section 6.7). The provisions of this Section 6.7 are (i) asserted intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or claimed prior her heirs and his or her representatives and (ii) in addition to, on and not in substitution for, any other rights to indemnification or after contribution that any such Person may have by contract or otherwise. In the Closing Date (including event that Parent, the Surviving Corporation, or any of their respective successors or assigns, transfers or conveys all or substantially all of its properties and assets to any Person, then, and in respect each such case, proper provision shall be made so that the successors and assigns of any matters arising in connection with this Agreement Parent and the transactions contemplated hereby Surviving Corporation shall assume all of the obligations thereof set forth in this Section 6.7. If the Company renews its director and by the Ancillary Agreementsofficer liability insurance policies and key-man life insurance policies, as disclosed on items 2 and 3 under clauses (iii), (iiiv), and (vii) now existing or (iii) arising prior on Schedule 6.1(a), then the Company shall fully pay all amounts with respect to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes such renewal prior to the Closing. If the Company renews or purchases a key-man life insurance policy, a directorthen the Company shall also fully pay the annual premiums under such policy, officeras disclosed on item 3 under clauses (iii), employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director(iv), officerand (vii) on Schedule 6.1(a), employee or other fiduciary of another Person at prior to the request of an Acquired Company or the Business (eachClosing. Employee Matters. Parent shall, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For for a period of six twelve (612) years after months immediately following the ClosingClosing Date, (A) Buyer shall not, cause the Surviving Corporation and shall not permit any Acquired Company to, without the prior written consent its subsidiaries to provide employees of the relevant D&O Indemnified PersonsCompany (the "Company Employees") generally with (i) the same overall level of base salary as in effect on the Closing Date and (ii) employee benefit plans, amendthat are not materially less favorable, repeal or modify in a manner adverse the aggregate, than similar employee benefit plans provided by the Parent to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or its employees prior to the Closing Date, whether asserted or, if of lesser value, the employee benefit plans of the Company. Parent or claimed one of its affiliates shall recognize the service of the Company Employees with the Company prior to, on or after to the Closing Date (including in respect of any matters arising as service with Parent and its affiliates in connection with this Agreement any employee benefit plans and employment policies (including vacations and holiday policies) maintained by Parent or one of its affiliates that are made available following the transactions contemplated hereby Closing Date by Parent or one of its affiliates for purposes of any waiting period, vesting, eligibility and benefit entitlement (but excluding benefit accruals); provided, however, that with respect to any defined benefit pension plan maintained by Parent or one of its affiliates in which such Company Employee participates following the Closing Date, such service credit shall be measured from the earliest date that such employee commenced participation in a tax-qualified pension or savings plan maintained by the Ancillary Agreements)Company. Parent shall (i) waive, unlessor cause its insurance carriers to waive, all limitations as to pre-existing and at-work conditions, if any, with respect to participation and coverage requirements applicable to Company Employees under any welfare benefit plan (as defined in Section 3(1) of ERISA) that is made available by Parent or one of its affiliates to Company Employees who are actively at work following the Closing Date, and only (ii) if Company Employees become covered under any welfare benefit plan of Parent or one of its affiliates for part of the plan year that includes the Closing Date, Parent shall provide credit to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer Employees for any amounts required to be co-payments, deductibles and out-of-pocket expenses actually paid by Buyer or any such employees under the employee benefit plans, programs and arrangements of its Subsidiaries (the Company during the portion of the relevant plan year including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessClosing Date.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that From and after the Purchase Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all rights obligations of the Company, and cause its subsidiaries to exculpationmaintain in effect all such obligations owed by them, to each individual who at the Effective Time is, or any time prior to the Effective Time was, a director, officer or employee of the Company or any of its subsidiaries (the "Indemnitees") in respect of indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party exculpation from liabilities for acts or omissions occurring at or prior to the Closing, whether Effective Time as provided in (ix) asserted the Company Charter Documents (or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement predecessor documents) and the transactions contemplated hereby organizational documents of such subsidiaries as currently in effect and by (y) the Ancillary Agreements)indemnification agreements listed on Section 5.7(a) of the Company Disclosure Schedule, (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (each, a “D&O Indemnified Person”) which shall survive the Closing Merger and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain continue in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their respective terms. Seller will indemnify Buyer for Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation and its subsidiaries to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees. In addition, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, pay any amounts required to be paid by Buyer or any of its Subsidiaries expenses (including the Acquired Companiesfees and expenses of legal counsel) in respect of any of Indemnitee in connection with enforcing the foregoing matters indemnity and other obligations provided for in this Section 5.7 as incurred to the fullest extent permitted under applicable Law, provided that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent the conduct of the required by applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the BusinessLaw.

Director and Officer Indemnification and Insurance. (a) Buyer agrees that all rights to exculpationindemnification, indemnification and advancement of expenses pursuant to the Organizational Documents of the Acquired Companies or any indemnification agreement to which any D&O Indemnified Person is party for acts or omissions occurring at or prior to the Closing, whether (i) asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and exculpation by the Ancillary Agreements), (ii) Company or the Operating Subsidiary now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, hereof or who becomes prior to the ClosingClosing Date, a director, officer, employee an officer or other fiduciary director of an Acquired Company or JV Entity or was serving as a director, officer, employee or other fiduciary of another Person at the request of an Acquired Company or the Business (eachOperating Subsidiary, a “D&O Indemnified Person”as provided in the certificate of incorporation or by-laws of the Company or the articles of organization or the operating agreement of the Operating Subsidiary, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof and disclosed in Section 5.03(a) of the Disclosure Schedules, shall survive the Closing Date and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain shall continue in full force and effecteffect in accordance with their respective terms. For (b) The Company and the Operating Subsidiary shall, and Buyer shall cause the Company and the Operating Subsidiary to (i) maintain in effect for a period of six (6) years after the ClosingClosing Date, if available, the current policies of directors’ and officers’ liability insurance maintained by the Company and the Operating Subsidiary immediately prior to the Closing Date (Aprovided that the Company or the Operating Subsidiary may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company and the Operating Subsidiary when compared to the insurance maintained by the Company and the Operating Subsidiary as of the date hereof), or (ii) Buyer shall notobtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and shall containing terms and conditions that are not permit any Acquired Company to, without less advantageous to the prior written consent directors and officers of the relevant D&O Indemnified PersonsCompany and the Operating Subsidiary, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses each case with respect to any D&O Indemnified Person in connection with acts claims arising out of or omissions occurring relating to events which occurred on or prior to the Closing Date, whether asserted or claimed prior to, on or after the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only to the extent, required by applicable Law or Order and (B) Buyer shall, and shall cause the Acquired Companies to, maintain in full force and effect any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts required to be paid by Buyer or any of its Subsidiaries (including the Acquired Companies) in respect of any of the foregoing matters to the extent the conduct of the applicable D&O Indemnified Person relates to the Retained Business. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Business.41

Director and Officer Indemnification and Insurance. (a) From and after the Initial Closing, Buyer agrees that all rights it shall cause the Company and its Subsidiaries to exculpationcontinue to indemnify, indemnification defend and advancement of expenses pursuant to the Organizational Documents hold harmless each present and former director and officer of the Acquired Companies Company or such Subsidiary, as applicable, against any indemnification agreement costs or expenses (including reasonable attorneys’ fees), judgments, fines, orders, 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 which any D&O Indemnified Person is party for acts matters existing or omissions occurring at or prior to the Closing, whether (i) asserted Initial Closing and which relate to such director’s or claimed prior to, on officer’s service as a director or after officer of the Closing Date (including in respect of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), (ii) now existing or (iii) arising prior to Closing, in favor of each Person who is now, or who has been at any time prior to the date hereof, or who becomes prior to the Closing, a director, officer, employee or other fiduciary of an Acquired Company or JV Entity any of its Subsidiaries or was serving service as a director, officer, employee employee, trustee or other fiduciary agent of another Person corporation or of a partnership, joint venture, trust, enterprise or nonprofit entity at the request of an Acquired Company or the Business (eachCompany, a “D&O Indemnified Person”) shall survive the Closing and the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements and remain in full force and effect. For a period of six (6) years after the Closing, (A) Buyer shall not, and shall not permit any Acquired Company to, without the prior written consent of the relevant D&O Indemnified Persons, amend, repeal or modify in a manner adverse to such D&O Indemnified Person any provision in any Acquired Company’s Organizational Documents relating to the exculpation, indemnification or advancement of expenses including service with respect to any D&O Indemnified Person in connection with acts or omissions occurring on or prior to the Closing Dateemployee benefit plans, whether asserted or claimed prior to, on at or after the Closing Date Initial Closing, to the fullest extent that the Company or such Subsidiary would have been permitted under applicable Law and its respective Organizational Documents or indemnification agreements or other arrangements of the Company or such Subsidiary in effect on the date of this Agreement to indemnify such person (including in respect the advancing of any matters arising in connection with this Agreement and the transactions contemplated hereby and by the Ancillary Agreements), unless, and only expenses as incurred to the extentfullest extent permitted under applicable Law); provided, required by that the person to whom such expenses are advanced provides an undertaking to the Company or the applicable Law or Order and (B) Buyer shallSubsidiary to repay such advances if it is ultimately determined that such person is not entitled to indemnification; provided, and shall cause the Acquired Companies tofurther, maintain in full force and effect that any indemnification agreements between any Acquired Company and any D&O Indemnified Person in accordance with their terms. Seller will indemnify Buyer for any amounts determination required to be paid by Buyer made with respect to whether an officer’s or any of its Subsidiaries (including director’s conduct complies with the Acquired Companies) in respect of any standards set forth under applicable Law and the Organizational Documents or indemnification agreements or other arrangements of the foregoing matters to the extent the conduct of Company or the applicable D&O Indemnified Person relates Subsidiary, as applicable, shall be made by independent counsel mutually acceptable to Buyer and the Retained BusinessSelling Shareholder Representatives. Buyer will indemnify Seller for any amounts required to be paid by Seller or any of its Subsidiaries to any director, officer, employee or other fiduciary of an Acquired Company to the extent such conduct relates to the Business.CH\1406641