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

Director and Officer Liability and Indemnification. (i) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer shall indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer or director of the Company Entities (the “Indemnified Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (a) the fact that the Indemnified Party is or was an officer or director of the Company Entities or (b) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent provided for in the applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents in effect on the date of this Agreement. In the event of any such claim, action, suit, proceeding or investigation, (1) each Indemnified Party, to the fullest extent permitted under applicable Law, will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Buyer or the Company Entities within ten (10) Business Days after receipt by Buyer from the Indemnified Party of a request therefor, provided that any person to whom expenses are advanced provides an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (2) neither Buyer nor any Company Entity, nor any of their respective Affiliates, shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents and (3) Buyer, the Company Entities and their respective Affiliates shall cooperate in the defense of any such matter.

Director and Officer Liability and Indemnification. (ia) Without limiting any additional rights that any Person may have under any other agreement, During the period from the Closing Date through until the sixth (6th) six year anniversary of the Closing Date, each of the Buyer shall and the Company shall, jointly and severally, indemnify and hold harmless each present (as of immediately prior harmless, to the Closing) and former officer fullest extent permitted by applicable Law, each person who was or director of the Company Entities (the “Indemnified Parties”)is or becomes, against all claimsor is threatened to be made, lossesa party to or witness or other participant in, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”), incurred or was or is or becomes obligated to furnish or furnishes documents in response to a subpoena or otherwise in connection with any threatened, pending or completed claim, action, suit, proceeding proceeding, arbitration or alternative dispute resolution mechanism, investigation, inquiry, administrative hearing, appeal or any other actual, threatened or completed proceeding, whether civilbrought in the right of a Covered Party (as defined below) or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative administrative, arbitrative or investigativeinvestigative nature (each, an “Indemnification Event”) by reason of the fact that such person is now, or has been at any time prior to the date hereof, or who becomes prior to the Closing, a director or officer of the Company (the “Covered Parties”), from (x) any and all fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, duplicating, printing and binding costs, telephone charges, postage and delivery service fees and all other disbursements or expenses of any type or nature whatsoever reasonably incurred by a Covered Party (including reasonable attorneys’ fees), and (y) any and all losses, claims, damages, liabilities, judgments, fines, penalties, settlement payments, awards and amounts of any type whatsoever incurred by such Covered Party in connection with or arising from any Indemnification Event arising out of or pertaining to (a) the fact that the Indemnified Covered Party is or was an officer or director of the Company Entities or (b) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated herebytaking of any action or the failure to take any action as a director or officer of the Company in connection with the Transactions), whether asserted or claimed prior to, at or after the Closing DateClosing. Each Covered Party will be entitled, subject to applicable Law, to the fullest extent provided for advancement of expenses incurred in the applicable Company Entity’s respective certificate defense of incorporation, by-laws or other organizational documents participation in effect on the date of this Agreement. In the event of any such claim, action, suit, proceeding or investigation, (1) each Indemnified Party, to the fullest extent permitted under applicable Law, will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from each of the Buyer and the Company within 10 Business Days of receipt by the Buyer or the Company Entities within ten (10) Business Days after receipt by Buyer from the Indemnified Covered Party of a request therefor; provided, provided however, that any person to whom expenses are advanced provides an undertaking undertaking, to the extent required by the Delaware General Corporation Law, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (2) neither Buyer nor any Company Entity, nor any of their respective Affiliates, shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents and (3) Buyer, the Company Entities and their respective Affiliates shall cooperate in the defense of any such matter.

Director and Officer Liability and Indemnification. (ia) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the date on which the Closing DateDate occurs, Buyer shall will indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer, director, manager, employee, fiduciary or agent of any of the Company Entities, in each case, acting in the capacity as a director or officer or director of any of the Company Entities (the “D&O Indemnified Parties”), ) to the same extent such persons are currently indemnified by the applicable Company Entity pursuant to such Company Entity’s Organizational Documents against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, Proceeding arising out of or pertaining relating to (ai) the fact that the D&O Indemnified Party is or was an officer or director of a Company Entity, or otherwise acting in the capacity as a director or officer of a Company Entities Entity, or (bii) matters existing or occurring at on or prior to the Closing Date (including this Agreement and the transactions and actions contemplated hereby)by this Agreement) related to such person’s conduct as an officer or director of a Company Entity, or otherwise acting in the capacity as a director or officer of a Company Entity, whether asserted or claimed prior to, at on or after the Closing Date, to the fullest extent provided for in the permitted under applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents in effect on the date of this AgreementLaw. In the event of any such claim, action, suit, proceeding or investigationProceeding, (1w) each D&O Indemnified Party, to the fullest extent permitted under applicable Law, Party will be entitled to advancement of reasonable expenses incurred in the defense of any claim, action, suit, proceeding Proceeding or investigation from Buyer or the Company Entities within ten (10) Business Days after of receipt by Buyer from the D&O Indemnified Party of a request therefor, provided that any person to whom expenses are advanced provides so long as such request is accompanied by an undertaking to repay such advances if it is ultimately determined that such person is not entitled to indemnificationthe extent required by applicable Law, (2x) neither Buyer nor any Company EntityBuyer, the Company, nor any of their respective Affiliates, shall will settle, compromise or consent to the entry of any judgment in any proceeding Proceeding or threatened action, suit, proceeding, investigation or claim Proceeding (and in either case in which indemnification could be sought by such D&O Indemnified Party hereunder), ) unless such settlement, compromise or consent (I)(A) includes an unconditional and full release of such D&O Indemnified Party from all liability arising out of such actionProceeding, suit(B) does not involve any finding or admission of violation of Law or admission of any wrongdoing or violation of any other Person’s rights and does not include a statement or admission of fault, proceedingculpability or failure to act on the part of the D&O Indemnified Party and (C) does not subject the D&O Indemnified Party to any injunctive relief or other equitable remedy, investigation or claim (II) or such D&O Indemnified Party otherwise consents consents, (y) the D&O Indemnified Party shall not without the prior consent of Buyer or the Surviving Company, settle, compromise or consent to the entry of any judgment in any Proceeding or threatened Proceeding (in either case in which indemnification is being sought by such D&O Indemnified Party hereunder) and (3z) the D&O Indemnified Parties, Buyer, the Company Entities Entities, and their respective Affiliates shall will cooperate in the defense of any such matter.

Director and Officer Liability and Indemnification. (i) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer shall, and shall cause the Company and its Subsidiaries to, indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer officer, director, employee or director agent of the Company Entities or any of its Subsidiaries (the “Indemnified D&O Parties”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative, arising out of or pertaining to (a) the fact that the Indemnified D&O Party is or was an officer officer, director, employee, fiduciary or director agent of the Company Entities or any of its Subsidiaries or (b) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent provided for in the permitted under applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents in effect on the date of this AgreementLaw. In the event of any such claim, action, suit, proceeding or investigation, (1x) each Indemnified Party, to the fullest extent permitted under applicable Law, D&O Party will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, proceeding or investigation from Buyer or Buyer, the Company Entities or a Subsidiary of the Company within ten (10) Business Days after of receipt by Buyer from the Indemnified D&O Party of a request therefor, ; provided that any person to whom expenses are advanced provides an undertaking undertaking, if and only to the extent required by applicable Law or the Company’s or its applicable Subsidiary’s Organizational Documents, to repay such advances if it is ultimately determined that such person is not entitled to indemnification, (2y) neither Buyer nor Buyer, the Company, any Subsidiary of the Company Entity, nor any of their respective Affiliates, shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified D&O Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified D&O Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified D&O Party otherwise consents consents, and (3z) Buyer, the Company, the Subsidiaries of the Company Entities and their respective Affiliates shall cooperate in the defense of any such matter.. (ii) Buyer shall not, and shall not permit the Company or any of its Subsidiaries to amend, repeal or modify in a manner adverse to the beneficiary thereof any provision in the Company’s or its Subsidiaries’ Organizational Documents or any other Contract to which it is a party, in each case relating to the exculpation or indemnification of such Indemnified D&O Parties, it being the intent of the Parties that such Indemnified D&O Parties shall continue to be entitled to such exculpation and indemnification to the fullest extent permitted under applicable Law. (iii) At or prior to the Closing, Buyer shall purchase (the cost and expense of which shall be borne by Buyer), and Buyer shall cause the Company and its Subsidiaries to maintain in effect for six (6) years from the Closing Date, directors’ and officers’ liability insurance covering those persons who are currently covered by the Company’s and its Subsidiaries’ directors’ and officers’ liability insurance policy on terms not less favorable than those of such existing insurance coverage; provided that in the event that any claim is brought under any such policy prior to the six-year anniversary of the Closing Date, such directors’ and officers’ liability insurance policy shall be maintained until final disposition thereof. (iv) Notwithstanding anything contained in this Agreement to the contrary, this Section 6P shall survive the consummation of the Closing indefinitely. In the event that Buyer or any of its Subsidiaries or any of their respective successors or assigns (a) consolidates with or merges into any

Director and Officer Liability and Indemnification. (ia) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer shall indemnify and hold harmless each the Surviving Corporation and its Subsidiaries will honor all indemnity and advancement obligations to present (as of immediately prior to the ClosingEffective Time) and former officer officers or director directors of the Company Entities or any of its Subsidiaries (the each, an “Indemnified PartiesPerson”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including reasonable attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any claim, action, suit, proceeding or investigationProceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (ai) the fact that the Indemnified Party Person is or was an officer or director of the Company Entities or any of its Subsidiaries prior to the Effective Time or (bii) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated herebyTransactions), whether asserted or claimed prior to, at or after the Closing DateClosing, to in accordance with the fullest extent provided for in the applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents express provisions as in effect on the date hereof of this Agreement. In the event Company’s Organizational Documents or under any indemnification agreements between a member of any the Company and an Indemnified Person regarding such claim, action, suit, proceeding Indemnified Person’s indemnification rights or investigation, (1) each Indemnified Party, required to the fullest extent permitted under applicable Law. In the event of any such action, suit, claim, investigation or proceeding, each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, claim, investigation or proceeding or investigation from Buyer or the Company Entities within ten (10) Business Days after Surviving Corporation and its Subsidiaries promptly following receipt by Buyer or the Surviving Corporation from the Indemnified Party Person of a request therefor, ; provided that any person to whom expenses are advanced provides an undertaking to repay such advances undertaking, if it is ultimately determined that such person is not entitled to indemnification, (2) neither Buyer nor any Company Entity, nor any of their respective Affiliates, shall settle, compromise or consent and only to the entry extent required by the DGCL or other applicable Law and by the certificate of incorporation, bylaws, limited liability company agreement or operating agreement (or equivalent organizational documents) of the Surviving Corporation or any judgment in any proceeding or threatened action, suit, proceeding, investigation or claim (and in which indemnification could be sought by such Indemnified Party hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party from all liability arising out of such action, suit, proceeding, investigation or claim or such Indemnified Party otherwise consents and (3) Buyer, the Company Entities and their respective Affiliates shall cooperate in the defense of any such matterSubsidiary thereof.

Director and Officer Liability and Indemnification. (ia) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer shall indemnify will cause the Surviving Corporation and its Subsidiaries to indemnify, defend and hold harmless each present (as of immediately prior to the ClosingEffective Time) and former officer officer, director, employee, manager, managing member, member, partner (general or director limited), fiduciary or agent of the Company Entities or any of its Subsidiaries (the each, an “Indemnified PartiesPerson”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any claim, action, suit, proceeding claim, investigation or investigationproceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (ai) the fact that the Indemnified Party Person is or was an officer officer, director, employee, manager, managing member, partner (general or director limited), fiduciary or agent of the Company Entities or any of its Subsidiaries or (bii) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated herebyTransactions), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent provided for in the applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents in effect on the date of this Agreement. In the event of any such claim, action, suit, proceeding or investigation, (1) each Indemnified PartyClosing, to the fullest extent permitted under applicable Law. In the event of any such action, suit, claim, investigation or proceeding, (x) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, claim, investigation or proceeding or investigation from Buyer or the Company Entities Surviving Corporation and its Subsidiaries within ten (10) Business Days after of receipt by Buyer or the Surviving Corporation from the Indemnified Party Person of a request therefor, ; provided that any person to whom expenses are advanced provides an undertaking undertaking, if and only to repay such advances if it is ultimately determined that such person is not entitled to indemnificationthe extent required by the DGCL or other applicable Law and by the certificate of incorporation, bylaws, limited liability company agreement or operating agreement (or equivalent organizational documents) of the Surviving Corporation or any Subsidiary thereof, (2y) neither Buyer nor any Company Entity, the Surviving Corporation nor any of their respective Affiliates, shall its Affiliates will settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceedingclaim, investigation or claim (and proceeding in which indemnification could be sought by such Indemnified Party Person hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party Person from all liability arising out of such action, suit, proceedingclaim, investigation or claim proceeding (including all attorney’s fees and expenses) or such Indemnified Party Person otherwise consents and (3z) Buyer, the Company Entities Surviving Corporation and their respective its Affiliates shall will reasonably cooperate in the defense of any such matter.

Director and Officer Liability and Indemnification. (ia) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer shall and the Company and its Subsidiaries will indemnify and hold harmless each present (as of immediately prior to the Closing) and former officer officer, director, manager, managing member, member or director partner (general or limited) of the Company Entities or any of its Subsidiaries (the each, an “Indemnified PartiesPerson”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any claim, action, suit, proceeding claim, investigation or investigationproceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (a) the fact that the Indemnified Party Person is or was an officer officer, director, manager, managing member or director partner (general or limited) of the Company Entities or (b) matters existing or occurring any of its Subsidiaries at or prior to the Closing Date (including with respect to acts or omissions of each Indemnified Person occurring prior to Closing, including in connection with this Agreement and the transactions and actions contemplated herebyTransactions), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent provided for in the applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents in effect on the date of this Agreement. In the event of any such claim, action, suit, proceeding or investigation, (1) each Indemnified PartyClosing, to the fullest extent permitted under applicable Law. If any such action, suit, claim, investigation or proceeding occurs, (i) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, claim, investigation or proceeding or investigation from Buyer or the Company Entities and its Subsidiaries within ten (10) Business Days after of receipt by Buyer or the Company from the Indemnified Party Person of a request therefor; provided that, provided that any person to whom expenses are advanced provides an undertaking undertaking, if and only to the extent required by the WBCA or other applicable Law and by the articles of incorporation, bylaws, limited liability company agreement or operating agreement (or equivalent organizational documents) of the Company or any Subsidiary thereof to repay such advances if it is ultimately determined that such person Indemnified Person is not entitled to indemnification, (2ii) neither Buyer nor any Company Entity, nor any of their respective Affiliates, shall its Affiliates will settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceedingclaim, investigation or claim (and proceeding in which indemnification could be sought by such Indemnified Party Person hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party Person from all liability arising out of such action, suit, proceedingclaim, investigation or claim proceeding (including all attorney’s fees and expenses) or such Indemnified Party otherwise consents and (3iii) Buyer, the Company Entities and their respective Affiliates shall will reasonably cooperate in the defense of any such matter.

Director and Officer Liability and Indemnification. (ia) Without limiting any additional rights that any Person may have under any other agreement, from the Closing Date through the sixth (6th) anniversary of the Closing Date, Buyer shall indemnify will cause the Purchased Subsidiaries to indemnify, defend and hold harmless each present (as of immediately prior to the Closing) and former officer officer, director, employee, manager, managing member, member, partner (general or director limited), fiduciary or agent of the Company Entities Purchased Subsidiaries who at or prior to the Closing provided services primarily in respect of the Business (the each, an “Indemnified PartiesPerson”), against all claims, losses, liabilities, damages, judgments, inquiries, fines and reasonable fees, costs and expenses, including attorneys’ fees and disbursements (collectively, “Costs”)disbursements, incurred in connection with any claim, action, suit, proceeding claim, investigation or investigationproceeding, whether civil, criminal, administrative or investigative, arising out of or pertaining to (ai) the fact that the Indemnified Party Person is or was an officer officer, director, employee, manager, managing member, partner (general or director limited), fiduciary or agent of the Company Entities Purchased Subsidiaries at such time that the Indemnified Person provided services primarily in respect of the Business or (bii) matters existing or occurring at or prior to the Closing Date (including this Agreement and the transactions and actions contemplated hereby), whether asserted or claimed prior to, at or after the Closing Date, to the fullest extent provided for in the applicable Company Entity’s respective certificate of incorporation, by-laws or other organizational documents in effect on the date of this Agreement. In the event of any such claim, action, suit, proceeding or investigation, (1) each Indemnified PartyClosing, to the fullest extent permitted under applicable Law. In the event of any such action, suit, claim, investigation or proceeding, (x) each Indemnified Person will be entitled to advancement of expenses incurred in the defense of any claim, action, suit, claim, investigation or proceeding or investigation from Buyer or the Company Entities within ten (10) Business Days after of receipt by Buyer from the Indemnified Party Person of a request therefor, therefor (provided that any person such Indemnified Person to whom expenses are to be advanced provides an must provide a reasonable and customary undertaking to repay such advances advanced amounts if it is ultimately finally determined in a non-appealable ruling by a court of competent jurisdiction that such person Person is not entitled to indemnification), (2y) neither Buyer nor any Company Entitywill not, nor any of their respective Affiliatesand will cause its Subsidiaries (including the Purchased Subsidiaries) not to, shall settle, compromise or consent to the entry of any judgment in any proceeding or threatened action, suit, proceedingclaim, investigation or claim (and proceeding in which indemnification could be sought by such Indemnified Party Person hereunder), unless such settlement, compromise or consent includes an unconditional release of such Indemnified Party Person from all liability arising out of such action, suit, proceedingclaim, investigation or claim proceeding (including all attorney’s fees and expenses) or such Indemnified Party Person otherwise consents and (3z) BuyerBuyer will, and will cause its Subsidiaries (including the Company Entities and their respective Affiliates shall Purchased Subsidiaries) to, reasonably cooperate in the defense of any such matter.