Common use of Indemnification of Officers, Directors, Employees and Agents Clause in Contracts

Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time, the Surviving Corporation and any successor entities which own and operate the business and properties owned by the Company and its Subsidiaries (collectively for the purposes of the indemnification provided by this Section 5.3 (the “Surviving Corporation”) shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”) against all losses, claims, damages, costs, expenses (including attorneys’ and other professionals’ fee and expenses), liabilities or judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of or in connection with any threatened or actual claim, action, suit, proceeding or 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 a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, arising out of or pertaining to acts or omissions in their capacities as such, and whether asserted or claimed prior to, at or after the Effective Time (“D&O Indemnified Liabilities”), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Transaction Documents or the transactions contemplated hereby and thereby, in each case to the fullest extent a corporation is permitted under the DGCL to indemnify its own directors or officers (and Parent and the Surviving Corporation shall, jointly and severally, pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each D&O Indemnified Person to the fullest extent a corporation is permitted under the DGCL to advance expenses to its directors and officers in connection with claims, actions and suits involving such Persons) only upon delivery to the Company or Surviving Corporation, as the case may be, of an undertaking, by or on behalf of such D&O Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a) or otherwise. In determining whether a D&O Indemnified Person is entitled to indemnification under this Section 5.3, if requested by such D&O Indemnified Person, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the D&O Indemnified Person (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates within the last three (3) years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Persons (whether arising before or after the Effective Time), (i) the D&O Indemnified Persons may retain the Company’s regularly engaged independent legal counsel or other counsel satisfactory to them and reasonably satisfactory to the Company (or satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation after the Effective Time), and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the D&O Indemnified Persons as promptly as statements therefor are received and (ii) Parent shall cause the Surviving Corporation to use its commercially reasonable best efforts to assist in the vigorous defense of any such matter, provided that the Surviving Corporation shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single claim, action, suit, proceeding or investigation, unless there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each similarly situated group. Any D&O Indemnified Person wishing to claim indemnification under this Section 5.3, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any liability that it may have under this Section 5.3 except to the extent such failure materially prejudices such party’s position with respect to such claims) and shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Section 145(e) of the DGCL, but without any requirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein.

Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time, Parent and the Surviving Corporation and any successor entities which own and operate the business and properties owned by the Company and its Subsidiaries (collectively for the purposes of the indemnification provided by this Section 5.3 (the “Surviving Corporation”) shall, jointly and severally, shall indemnify, defend and hold harmless each Person person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director director, officer, employee or officer agent of the Company or any of its Subsidiaries (the “D&O "Indemnified Persons”Parties") against all losses, claims, damages, costs, expenses (including attorneys’ and other professionals’ ' fee and expenses), liabilities or judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of or in connection with any threatened or actual claim, action, suit, proceeding or investigation based in whole or in part on or arising in whole or in part out of the fact that such Person person is or was a director director, officer, employee or officer agent of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person person in any such capacity, arising out of or capacity whether pertaining to acts any act or omissions in their capacities as suchomission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“D&O "Indemnified Liabilities”"), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Transaction Documents or the transactions contemplated hereby and thereby, in each case to the fullest extent a corporation is permitted under the DGCL to indemnify its own directors or officers (and Parent and the Surviving Corporation shallCorporation, jointly and severallyas the case may be, shall pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each D&O Indemnified Person Party to the fullest extent a corporation is permitted under the DGCL to advance expenses to its directors and officers in connection with claims, actions and suits involving such Persons) only upon delivery to the Company or Surviving Corporation, as the case may be, of an undertaking, by or on behalf of such D&O Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a) or otherwiseApplicable Law). In determining whether a D&O an Indemnified Person Party is entitled to indemnification under this Section 5.35.5, if requested by such D&O Indemnified PersonParty, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the D&O Indemnified Person Party (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates affiliates within the last three (3) years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Persons Parties (whether arising before or after the Effective Time), (i) the D&O Indemnified Persons Parties may retain the Company’s 's regularly engaged independent legal counsel or other counsel satisfactory to them and reasonably satisfactory to the Company (or satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation after the Effective Time), and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the D&O Indemnified Persons Parties as promptly as statements therefor are received and (ii) Parent shall cause and the Surviving Corporation to shall use its commercially reasonable their best efforts to assist in the vigorous defense of any such matter, provided that neither Parent nor the Surviving Corporation shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single claim, action, suit, proceeding or investigation, unless there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each similarly situated group. Any D&O Indemnified Person Party wishing to claim indemnification under this Section 5.35.5, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any liability that it may have under this Section 5.3 5.5 except to the extent such failure materially prejudices such party’s 's position with respect to such claims) and shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Section 145(e) of the DGCL, but without any requirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein. The Company, Parent, Sub and the Surviving Corporation agree that the foregoing rights to indemnification, including provisions relating to advances of expenses incurred in defense of any action or suit, existing in favor of the Indemnified Parties with respect to matters occurring through the Effective Time, shall survive the Merger and shall continue in full force and effect for a period of not less than six years from the Effective Time; provided, however, that all rights to indemnification (including rights relating to advances of expenses) in respect of any Indemnified Liabilities asserted or made within such period shall continue until the disposition of such Indemnified Liabilities. Notwithstanding the foregoing, the Surviving Corporation would not provide indemnification to any officer or director in excess of any amounts actually received pursuant to D&O liability insurance if such officer or director was a Securityholder immediately prior to the Merger and 44 the indemnification claim relates to matters to which Parent or the Surviving Corporation is entitled to indemnification pursuant to the Agreement.

Indemnification of Officers, Directors, Employees and Agents. (a) From Buyer shall, and after the Effective Time, the Surviving Corporation and any successor entities which own and operate the business and properties owned by the Company and shall cause its Subsidiaries (collectively for including after the purposes Closing, the Company Group) to, ensure that all rights to exculpation, indemnification and advancement of expenses now existing in favor of the indemnification provided by this Section 5.3 past and present directors, managers and officers (the “Surviving Corporation”in such capacities) shallof each Company Group Member (collectively, jointly and severallytogether with their respective heirs, indemnifyexecutors or administrators, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the “D&O Indemnified PersonsParties”) against all losses, claims, damages, costs, expenses (including attorneys’ and other professionals’ fee and expenses), liabilities or judgments or amounts that are paid as provided in settlement with the approval Organizational Documents of the indemnifying party Company Group or any written indemnification agreement provided to Buyer, shall survive the Closing and shall continue in full force and effect for a period of not less than six (which approval 6) years from the Closing Date and such indemnification agreements and the provisions with respect to indemnification, advancement of expenses and limitations on liability set forth in such Organizational Documents with respect to acts or omissions existing or occurring at or prior to the Closing shall not be unreasonably withheldamended, repealed or otherwise modified (unless required by Law) in a manner that is adverse to any D&O Indemnified Party; provided, that all rights to indemnification and advancement of or expenses in connection with respect of any threatened or actual claim, action, suit, proceeding or 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 a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, Proceeding arising out of or pertaining related to acts matters existing or omissions in their capacities as such, occurring at or prior to the Closing and whether asserted or claimed prior to, at or after the Effective Time made within such six-year period (each a “D&O Indemnified LiabilitiesClaim”), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Transaction Documents or the transactions contemplated hereby and thereby, in each case to the fullest extent a corporation is permitted under the DGCL to indemnify its own directors or officers (and Parent and the Surviving Corporation shall, jointly and severally, pay expenses in advance of ) shall continue until the final disposition of any such claimProceeding. Notwithstanding the foregoing, action, suit, proceeding or investigation to each D&O Indemnified Person to the fullest extent a corporation is permitted under the DGCL to advance expenses to its directors and officers in connection with claims, actions and suits involving such Persons) only upon delivery to the Company or Surviving Corporation, as the case may be, of an undertaking, by or on behalf of such D&O Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a) or otherwise. In determining whether a D&O Indemnified Person is Party shall not be entitled to indemnification under this Section 5.3, if requested by such D&O Indemnified Person, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the D&O Indemnified Person (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates within the last three (3) years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Persons (whether arising before or after the Effective Time), (i) the D&O Indemnified Persons may retain the Company’s regularly engaged independent legal counsel or other counsel satisfactory to them and reasonably satisfactory to the Company (or satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation after the Effective Time), and Parent and the Surviving Corporation shall pay all reasonable fees and advancement of expenses of such counsel for the D&O Indemnified Persons as promptly as statements therefor are received and (ii) Parent shall cause the Surviving Corporation to use its commercially reasonable best efforts to assist in the vigorous defense of any such matter, provided that the Surviving Corporation shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single claim, action, suit, proceeding or investigation, unless there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each similarly situated group. Any D&O Indemnified Person wishing to claim indemnification under this Section 5.3, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any liability that it may have under this Section 5.3 except contemplated above to the extent such failure materially prejudices such party’s position with respect to such claims) and shall deliver to Parent and D&O Indemnified Party is the Surviving Corporation the undertaking contemplated by Section 145(e) of the DGCL, but without any requirement for the posting subject of a bond D&O Claim by the Buyer or any other terms or conditions other than those expressly set forth hereinits Affiliates against Seller pursuant to this Agreement.

Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective Time, Parent and the Surviving Corporation and any successor entities which own and operate the business and properties owned by the Company and its Subsidiaries (collectively for the purposes of the indemnification provided by this Section 5.3 (the “Surviving Corporation”) shall, jointly and severally, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective Time, a director or officer of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”) against all losses, claims, damages, costs, expenses (including attorneys’ and other professionals’ fee and expenses), liabilities or judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of or in connection with any threatened or actual claim, action, suit, proceeding or 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 a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, director or officer employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, arising out of or capacity whether pertaining to acts any act or omissions in their capacities as suchomission occurring or existing prior to, at or after the Effective Time and whether asserted or claimed prior to, at or after the Effective Time (“D&O Indemnified Liabilities”), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Transaction Documents or the transactions contemplated hereby and thereby, in each case to the fullest extent a corporation is permitted under the DGCL VSCA to indemnify its own directors or officers (and Parent and the Surviving Corporation shall, jointly and severally, pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each D&O Indemnified Person to the fullest extent a corporation is permitted under the DGCL VSCA to advance expenses to its directors and officers in connection with claims, actions and suits involving such Persons) only upon delivery to the Company or Surviving Corporation, as the case may be, of an undertaking, by or on behalf of such D&O Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a) or otherwise). In determining whether a D&O Indemnified Person is entitled to indemnification under this Section 5.35.4, if requested by such D&O Indemnified Person, such determination shall be made by special, independent counsel selected by the Surviving Corporation and approved by the D&O Indemnified Person (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation or its Affiliates within the last three (3) years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Persons (whether arising before or after the Effective Time), (i) the D&O Indemnified Persons may retain the Company’s regularly engaged independent legal counsel or other counsel satisfactory to them and reasonably satisfactory to the Company (or satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation after the Effective Time), and Parent and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the D&O Indemnified Persons as promptly as statements therefor are received and (ii) Parent shall cause and the Surviving Corporation to shall use its commercially reasonable their best efforts to assist in the vigorous defense of any such matter, provided that neither Parent nor the Surviving Corporation shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and provided further that neither Parent nor the Surviving Corporation shall be obligated pursuant to this Section 5.3 to pay the fees and disbursements of more than one counsel for all Indemnified Parties in any single claim, action, suit, proceeding or investigation, unless there is or may be a conflict of interests between two or more of such Indemnified Parties, in which case there may be separate counsel for each similarly situated group. Any D&O Indemnified Person wishing to claim indemnification under this Section 5.35.4, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation (but the failure so to notify shall not relieve a party from any liability that it may have under this Section 5.3 5.4 except to the extent such failure materially prejudices such party’s position with respect to such claims) and and, if applicable, shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Section 145(e) 13.1-699.A.2 of the DGCLVSCA, but without any requirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein.

Indemnification of Officers, Directors, Employees and Agents. (a) From and after the Effective TimeClosing Date, the Surviving Corporation Entity (whose indemnification obligations provided by this Section 5.2 shall be binding, jointly and severally, on the Surviving Entity and any successor entities which may be wholly owned by Parent and which may hereafter own and operate any material part of the business and properties owned by the Company and its Subsidiaries (collectively for at the purposes of the indemnification provided by this Section 5.3 (the “Surviving Corporation”) Closing Date), shall, jointly and severallyto the fullest extent permitted by law, indemnify, defend and hold harmless each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Effective TimeClosing Date, a director or officer of the Company or any of its Subsidiaries (the “D&O Indemnified Persons”) against all losses, claims, damages, costs, expenses (including attorneys’ and other professionals’ fee and expenses), liabilities or judgments or amounts that are paid in settlement with the approval of the indemnifying party (which approval shall not be unreasonably withheld) of or in connection with any threatened or actual claim, action, suit, proceeding or 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 a director or officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer employee or agent of another corporation, partnership, limited liability company, joint venture, employee benefit plan, trust or other enterprise or by reason of anything done or not done by such Person in any such capacity, arising out of or pertaining to acts or omissions in their capacities as such, and whether asserted or claimed prior to, at or after the Effective Time Closing Date (“D&O Indemnified Liabilities”), including all D&O Indemnified Liabilities based in whole or in part on, or arising in whole or in part out of, or pertaining to the Transaction Documents or the transactions contemplated hereby and thereby, in each case to the fullest extent a corporation the Surviving Entity is permitted under the DGCL to indemnify its own directors or officers (and Parent and the Surviving Corporation Entity shall, jointly and severally, pay expenses in advance of the final disposition of any such claim, action, suit, proceeding or investigation to each D&O Indemnified Person to the fullest extent a corporation the Surviving Entity is permitted under the DGCL to advance expenses to its directors and officers in connection with claims, actions actions, proceedings and suits involving such Persons) only upon delivery to the Company or Surviving CorporationEntity, as the case may be, of an undertaking, by or on behalf of such D&O Indemnified Person, to repay all amounts so advanced if it shall ultimately be determined that such indemnified person is not entitled to be indemnified under this Section 5.3(a5.2(a) or otherwise. In determining whether a D&O Indemnified Person is entitled to indemnification under this Section 5.35.2, if requested by such D&O Indemnified Person, such determination shall be made by special, independent counsel selected by the Surviving Corporation Entity and approved by the D&O Indemnified Person (which approval shall not be unreasonably withheld) and who has not otherwise performed services for the Surviving Corporation Entity or its Affiliates within the last three (3) years (other than in connection with such matters). Without limiting the foregoing, in the event any such claim, action, suit, proceeding or investigation is brought against any D&O Indemnified Persons (whether arising before or after the Effective TimeClosing Date), (i) the D&O Indemnified Persons may retain the Company’s regularly engaged independent legal counsel or other counsel satisfactory to them and reasonably satisfactory to the Company (or satisfactory to them and reasonably satisfactory to Parent and the Surviving Corporation Entity after the Effective TimeClosing Date), and Parent and the Surviving Corporation Entity shall pay all reasonable fees and expenses of such counsel for the D&O Indemnified Persons as promptly as statements therefor are received and (ii) Parent shall cause the Surviving Corporation Entity to use its commercially reasonable best efforts to assist in the vigorous defense of any such matter, provided that the Surviving Corporation Entity shall not be liable for any settlement effected without its prior written consent (which consent shall not be unreasonably withheld), and provided further that neither Parent nor the Surviving Corporation Entity shall be obligated pursuant to this Section 5.3 5.2 to pay the fees and disbursements of more than one counsel for all D&O Indemnified Parties Persons in any single claim, action, suit, proceeding or investigation, unless there is or may be a conflict of interests between two or more of such D&O Indemnified PartiesPersons, in which case there may be separate counsel for each similarly situated group. Any D&O Indemnified Person wishing to claim indemnification under this Section 5.35.2, upon learning of any such claim, action, suit, proceeding or investigation, shall notify the Surviving Corporation Entity (but the failure so to notify shall not relieve a party from any liability that it may have under this Section 5.3 5.2 except to the extent such failure materially prejudices such party’s position with respect to such claims) and shall deliver to Parent and the Surviving Corporation Entity the undertaking contemplated by Section 145(e) of the DGCL or any similar undertaking contemplated by the DGCL, but without any requirement for the posting of a bond or any other terms or conditions other than those expressly set forth herein.