Release of Pre-Distribution Claims (a) Except (i) as provided in Section 6.1(b), (ii) as may be otherwise expressly provided in this Agreement or in any Ancillary Agreement and (iii) for any matter for which any Party is entitled to indemnification pursuant to this Article VI:
(i) Air Products, for itself and each member of the Air Products Group, its Affiliates as of the Separation Time and, to the extent permitted by Law, all Persons who at any time prior to the Separation Time were directors, officers, agents or employees of any member of the Air Products Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge Versum and the other members of the Versum Group, its Affiliates and all Persons who at any time prior to the Separation Time were stockholders, directors, officers, agents or employees of any member of the Versum Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all (A) Air Products Retained Liabilities and (B) Liabilities in connection with the Internal Reorganization, the Distribution and any of the other transactions contemplated hereunder and under the Ancillary Agreements, in each case, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Separation Time, including (such liabilities, the “Air Products Released Liabilities”) and in any event shall not, and shall cause its respective Subsidiaries not to, bring any Action against any member of the Versum Group in respect of any Air Products Released Liabilities; provided, however, that nothing in this Section 6.1(a)(i) shall relieve any Person released in this Section 6.1(a)(i) who, after the Separation Time, is a director, officer or employee of any member of the Versum Group and is no longer a director, officer or employee of any member of the Air Products Group from Liabilities arising out of, relating to or resulting from his or her service as a director, officer or employee of any member of the Versum Group after the Separation Time. Notwithstanding the foregoing, nothing in this Agreement shall be deemed to limit Air Products, any member of the Air Products Group, or their respective Affiliates from commencing any Actions against any Versum officer, director, agent or employee, or their respective heirs, executors, administrators, successors and assigns with regard to matters arising from, or relating to, (i) theft of Air Products Know-How or (ii) intentional criminal acts by any such officers, directors, agents or employees.
(ii) Versum, for itself and each member of the Versum Group, its Affiliates as of the Separation Time and, to the extent permitted by Law, all Persons who at any time prior to the Separation Time were directors, officers, agents or employees of any member of the Versum Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, does hereby remise, release and forever discharge Air Products and the other members of the Air Products Group, its Affiliates and all Persons who at any time prior to the Separation Time were stockholders, directors, officers, agents or employees of any member of the Air Products Group (in their respective capacities as such), in each case, together with their respective heirs, executors, administrators, successors and assigns, from any and all (A) Versum Liabilities and (B) Liabilities in connection with the Internal Reorganization, the Versum Financing Cash Distribution, the Distribution and any of the other transactions contemplated hereunder and under the Ancillary Agreements, in each case, whether at Law or in equity (including any right of contribution), whether arising under any Contract, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Separation Time (such liabilities, the “Versum Released Liabilities”) and in any event shall not, and shall cause its respective Subsidiaries not to, bring any Action against any member of the Air Products Group in respect of any Versum Released Liabilities; provided, however, that for purposes of this Section 6.1(a)(ii), the members of the Versum Group shall also release and discharge any officers or other employees of any member of the Air Products Group, to the extent any such officers or employees served as a director or officer of any members of the Versum Group prior to the Distribution, from any and all Liability, obligation or responsibility for any and all past actions or failures to take action, in each case in their capacity as a director or officer of any such member of the Versum Group, prior to the date of the Distribution, including actions or failures to take action that may be deemed to have been negligent or grossly negligent.
(b) Nothing contained in this Agreement, including Section 6.1(a), Section 2.4(a) or Section 2.5, shall impair or otherwise affect any right of any Party and, as applicable, a member of such Party’s Group, as well as their respective heirs, executors, administrators, successors and assigns, to enforce this Agreement, any Ancillary Agreement or any agreements, arrangements, commitments or understandings contemplated in this Agreement or in any Ancillary Agreement to continue in effect after the Separation Time. In addition, nothing contained in Section 6.1(a) shall release any person from:
(i) any Liability Assumed, Transferred or allocated to a Party or a member of such Party’s Group pursuant to or as contemplated by, or any other Liability of any member of such Group under, this Agreement or any Ancillary Agreement including (A) with respect to Air Products, any Air Products Retained Liability and (B) with respect to Versum, any Versum Liability;
(ii) any Liability provided for in or resulting from any other Contract or understanding that is entered into after, or that does not terminate as of, the Separation Time between any Party (and/or a member of such Party’s or Parties’ Group), on the one hand, and any other Party or Parties (and/or a member of such Party’s or Parties’ Group), on the other hand;
(iii) any Liability with respect to any Continuing Arrangements;
(iv) any Liability with respect to any intercompany accounts which are to be governed in accordance with Section 2.4(a), except to the extent set forth therein;
(v) any Liability that the Parties may have with respect to indemnification pursuant to this Agreement or otherwise for Actions brought against the Parties by third Persons, which Liability shall be governed by the provisions of this Agreement and, in particular, this Article VI and, if applicable, the appropriate provisions of the Ancillary Agreements;
(vi) any Liability the release of which would result in a release of any Person other than the Persons released in Section 6.1(a); provided that the Parties agree not to bring any Action or permit any other member of their respective Group to bring any Action against a Person released in Section 6.1(a) with respect to such Liability;
(vii) any Liability arising from or relating to the sale, lease, manufacture, construction, provision, or receipt of goods or services, payment for goods, property or services purchased, obtained or used in the ordinary course of business by a member of a Group from a member of the other Group prior to the Separation Time or any related refund claims; and
(viii) any Liability provided for in, or resulting from, this Agreement or any Ancillary Agreement. In addition, nothing contained in Section 6.1(a) shall release Air Products from indemnifying any director, officer or employee of Versum who was a director, officer or employee of Air Products or any of its Affiliates prior to the Distribution Date, as the case may be, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was entitled to such indemnification pursuant to then-existing obligations; it being understood that if the underlying obligation giving rise to such Action is an Versum Liability, Versum shall indemnify Air Products for such Liability (including Air Products’ costs to indemnify the director, officer or employee) in accordance with the provisions set forth in this Article VI.
(c) Each Party shall not, and shall not permit any member of its Group to, make any claim for offset, or commence any Action, including any claim of contribution or any indemnification, against any other Party or any member of any other Party’s Group, or any other Person released pursuant to Section 6.1(a), with respect to any Liabilities released pursuant to Section 6.1(a).
(d) If any Person associated with a Party (including any director, officer or employee of a Party) initiates any Action with respect to claims released by this Section 6.1, the Party with which such Person is associated shall be responsible for the fees and expenses of counsel of the other Party (and/or the members of such Party’s Group, as applicable) and such other Party shall be indemnified for all Liabilities incurred in connection with such Action in accordance with the provisions set forth in this Article VI.
(e) At any time, at the request of any other Party, each Party shall cause each member of its respective Group to execute and deliver releases reflecting the provisions of this Section 6.1; provided that such member is a member of the applicable Group at the time of such request.