Common use of D&O Indemnification Clause in Contracts

D&O Indemnification. (a) For six (6) years from and after the Effective Time, Parent shall indemnify, defend, and hold harmless the current and former directors and officers of the Company (the “D&O Indemnified Parties”) in respect of acts or omissions occurring at or prior to the Effective Time to the fullest extent permitted by Delaware Law or provided under the Company’s Restated Certificate and Bylaws as in effect on the date of this Agreement and pursuant to any indemnity agreements between the Company and such Person as in effect on the date of this Agreement. Parent shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation and bylaws regarding elimination of liability of directors, indemnification of directors and officers and employees and advancement of expenses that are no less advantageous to the D&O Indemnified Parties than the corresponding provisions in the Company’s Restated Certificate and Bylaws in existence as of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Parties without the consent of such affected D&O Indemnified Parties. The rights of the D&O Indemnified Parties under this Section 5.12 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, or applicable Law. (b) This Section 5.12 shall survive the consummation of the Merger and the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Entity. (c) Prior to the Effective Time, the Company shall purchase a six-year extended reporting period or tail policy insuring the current and former officers or directors of the Company for the current program of directors’ and officers’ liability insurance maintained by the Company which shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at or prior to the Effective Time. The provisions of this Section 5.12(c) are intended to be for the benefit of, and shall be enforceable by, each of the current and former directors and officers of the Company, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have.

D&O Indemnification. (a) For a period of six (6) years from and after the Effective TimeClosing Date (and such additional period of time as may be necessary to fully and finally resolve any claims for indemnification which have been duly submitted prior to the six (6) year anniversary of the Closing Date), Parent unless otherwise required by applicable Law, Buyer shall indemnify, defendnot, and hold harmless shall cause the current Companies not to, amend, repeal or modify any provision in the Companies’ respective certificates of incorporation or formation, bylaws or limited liability company agreements (or equivalent organizational documents) relating to the limitation, waiver or disclaimer of fiduciary duty or indemnification, exculpation or advancement of expenses of present and former directors and directors, managers, officers or employees of the Company Companies or any of their respective predecessors (collectively, the “D&O Indemnified Parties”) ), in respect of acts or omissions occurring at or prior their capacities as such, in any manner that would result in such provisions being less favorable to the Effective Time to the fullest extent permitted by Delaware Law or provided under the Company’s Restated Certificate and Bylaws D&O Indemnified Parties as in effect on the date of this Agreement and pursuant to any indemnity agreements between the Company and such Person as in effect on the date of this Agreement. Parent shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation and bylaws regarding elimination of liability of directors, indemnification of directors and officers and employees and advancement of expenses that are no less advantageous to the D&O Indemnified Parties than the corresponding provisions in the Company’s Restated Certificate and Bylaws in existence as of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Parties without the consent of such affected D&O Indemnified Parties. The rights of the D&O Indemnified Parties under this Section 5.12 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, or applicable Lawhereof. (b) This Section 5.12 shall survive the consummation of the Merger and the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Entity. (c) Prior to the Effective Time, the Company shall purchase a six-year extended reporting period or tail policy insuring the current and former officers or directors of the Company for the current program of directors’ and officers’ liability insurance maintained by the Company which shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at or prior to the Effective Time. The provisions of obligations under this Section 5.12(c) 10.05 are intended to be for the benefit ofof each D&O Indemnified Party and such D&O Indemnified Party’s respective estate, heirs and representatives and this Section 10.05 shall not be terminated or modified in such a manner as to adversely affect any D&O Indemnified Party or such D&O Indemnified Party’s respective estate, heirs and representatives without the consent of such D&O Indemnified Party. It is expressly agreed that the D&O Indemnified Parties and such D&O Indemnified Party’s respective estate, heirs and representatives are third party beneficiaries of this Section 10.05 and entitled to enforce the covenants contained herein. Nothing herein shall affect any indemnification rights that any D&O Indemnified Party or such D&O Indemnified Party’s respective estate, heirs and Representatives may have under the organizational documents of the Companies or any Law. (c) In the event that, following the Closing, the Companies or Buyer or any of their respective successors or assigns (i) consolidates with or merges into any other Person and shall not be 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 such case, proper provision shall be enforceable by, each made so that the successors and assigns of the current and former directors and officers of Companies or Buyer, as the Companycase may be, his or her heirs and his or her representatives and are shall succeed to the obligations set forth in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may havethis Section 10.05.

D&O Indemnification. (a) For six (6) years All rights to indemnification and exculpation from and after the Effective Time, Parent shall indemnify, defend, and hold harmless the current and former directors and officers of the Company (the “D&O Indemnified Parties”) in respect of liabilities for acts or omissions occurring at or prior to the Effective Time existing in favor of the current or former directors or officers of the Company (each, a “Company Indemnified Party”) as provided in the Articles of Incorporation, the Company bylaws or in separate agreements between the Company and individual officers and directors, shall continue to be binding upon by the fullest extent permitted by Delaware Law or provided under Surviving Corporation, and, for a period of six (6) years after the Company’s Restated Certificate Effective Time, Parent will fulfill and Bylaws as honor in all respects such obligations in accordance with the terms thereof in each case in effect on the date of this Agreement hereof, and pursuant to any indemnity agreements between the Company for such six (6) year period such rights will continue in full force and such Person as effect in effect on the date of this Agreement. Parent shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation accordance with their respective terms and bylaws regarding elimination of liability of directors, indemnification of directors and officers and employees and advancement of expenses that are no less advantageous to the D&O Indemnified Parties than the corresponding provisions in the Company’s Restated Certificate and Bylaws in existence as of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminatedamended, amended repealed or otherwise modified in so as to adversely affect any manner Company Indemnified Party; provided that adversely affects such indemnification shall be subject to any D&O limitation imposed from time to time under Legal Requirement. Any Company Indemnified Parties without the consent of such affected D&O Indemnified Parties. The rights of the D&O Indemnified Parties Party wishing to claim indemnification under this Section 5.12 5.21, upon learning of any such claim, action, suit, proceeding or investigation, shall be in addition topromptly notify Parent and the Surviving Corporation, and shall deliver to Parent and the Surviving Corporation the undertaking contemplated by Washington Law; provided further that the failure to so notify shall not in substitution for, any other rights that affect the obligations of the Surviving Corporation under this Section 5.21 except (and only) to the extent such Persons may have under failure to notify materially prejudices Parent or the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, or applicable LawSurviving Corporation. (b) This Section 5.12 5.21 shall survive the consummation of the Merger and the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Entity. (c) Prior to the Effective Time, the Company shall purchase a six-year extended reporting period or tail policy insuring the current and former officers or directors of the Company for the current program of directors’ and officers’ liability insurance maintained by the Company which shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at or prior to the Effective Time. The provisions of this Section 5.12(c) are intended to be for the benefit of, and shall be enforceable by, each of the current and former directors and officers of the CompanyCompany Indemnified Party, his or her heirs and his or her representatives and are the Company (whether or not parties to this Agreement) and shall not be amended on or after the Effective Time without the consent of all Company Indemnified Parties. The rights of this Section 5.21 shall be in addition toto any rights such persons may have under the Articles of Incorporation or Company bylaws or the articles or certificate of incorporation or bylaws of any subsidiary of the Company, and not in substitution for, or under Washington Law or any other rights to indemnification applicable laws or contribution that under any such person may haveagreement of any Company Indemnified Party with the Company or any of its subsidiaries.

D&O Indemnification. (a) For a period of six (6) years from and after the Effective TimeClosing, Parent Buyer shall indemnify, defendnot, and hold harmless shall not permit any Acquired Company to, amend, repeal or otherwise modify any provision in such Acquired Company’s Organizational Documents relating to the current and former directors and officers indemnification or exculpation of any Pre-Closing Indemnified Person from the Company form of such provision as of immediately prior to Closing (the “D&O Indemnified Parties”unless any such amendment, repeal or modification is required by applicable Law) in respect of acts or omissions occurring at or for any period prior to the Effective Time consummation of the Closing, it being the intent of the Parties that the Pre-Closing Indemnified Persons shall continue to be entitled to such indemnification and exculpation to the fullest extent permitted by Delaware Law or provided under the Company’s Restated Certificate and Bylaws as in effect on the date of this Agreement and pursuant to for any indemnity agreements between the Company and such Person as in effect on the date of this Agreement. Parent shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation and bylaws regarding elimination of liability of directors, indemnification of directors and officers and employees and advancement of expenses that are no less advantageous period prior to the D&O Indemnified Parties than the corresponding provisions in the Company’s Restated Certificate and Bylaws in existence as consummation of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Parties without the consent of such affected D&O Indemnified Parties. The rights of the D&O Indemnified Parties under this Section 5.12 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, or applicable LawClosing. (b) This Section 5.12 From and after the Closing, Buyer shall survive cause the consummation Acquired Companies to fulfill and honor the obligations of the Merger Acquired Companies under any indemnification provision and any exculpation provision in the Effective Time, is intended to benefit and may be enforced by Organizational Documents of the Company, Parent, Acquired Companies as in effect as of the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving EntityClosing. (c) Prior If Buyer or any of its respective successors or assigns (i) consolidates with or merges into any other Entity and is not the continuing or surviving Entity of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to the Effective Timeany Person, the Company then Buyer or its applicable successor or assign shall purchase a six-year extended reporting period cause its applicable successors or tail policy insuring the current and former officers or directors assigns to assume all of the Company for obligations thereof in this Section 5.11. (d) The Pre-Closing Indemnified Persons are intended third-party beneficiaries of this Section 5.11, with full rights of enforcement of this Section 5.11 as if a party hereto. (e) As used herein, “Pre-Closing Indemnified Person” means any Person who is or was an officer, manager or director of the current program of directors’ and officers’ liability insurance maintained by the Company which shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring Acquired Companies at or at any time prior to the Effective Time. The provisions of this Section 5.12(c) are intended to be for the benefit of, and shall be enforceable by, each of the current and former directors and officers of the Company, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may haveClosing.

D&O Indemnification. (a) For From Closing and for a period of six (6) years from and after the Effective Timethereafter, Parent shall indemnify, defend, cause the Surviving Company to indemnify and hold harmless the against Loss all current and former directors and or officers of the Company (collectively, the “D&O Indemnified PartiesCovered Persons”) to the same extent the Covered Persons are indemnified or have the right to advancement of expenses as of the date of this Agreement by the Company pursuant to its Articles of Incorporation or Bylaws, or as provided under Applicable Law as of the date hereof, but subject to any limitation imposed by Applicable Law; provided, however, that no Covered Person shall have any right of contribution, indemnification or right of advancement from Parent, the Surviving Company or their respective successors with respect to any Losses claimed by any Indemnified Party against such Covered Person in his, her or its capacity as a Shareholder pursuant to Article 7. (b) Prior to the Effective Time, subject to Parent’s review and approval, the Company or, at the Company’s request, Parent, shall acquire, at the Company’s expense, a prepaid “tail” policy providing coverage retentions, limits and other material terms substantially equivalent or better to the current policies of directors' and officers' liability insurance and fiduciary liability insurance maintained by the Company with respect of acts or omissions occurring to matters arising at or prior to the Effective Time to with coverage for no less than and no more than six (6) years following the fullest extent permitted by Delaware Law or provided under Effective Time (the Company’s Restated Certificate and Bylaws as in effect on the date of this Agreement and pursuant to any indemnity agreements between the Company and such Person as in effect on the date of this Agreement“D&O Tail Policy”). Parent shall not, and shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation Company not to, take any action to eliminate or otherwise reduce or adversely modify such D&O Tail Policy. The D&O Tail Policy will be the primary obligor for any claims by the Covered Persons under this Section 5.10, and bylaws regarding elimination of liability of directors, indemnification of directors the Covered Persons shall seek recovery from the D&O Tail Policy (if and officers and employees and advancement of expenses that are no less advantageous to the D&O Indemnified Parties than extent available) prior to seeking recourse from Parent, the corresponding provisions in Surviving Company or their respective successors pursuant to the Company’s Restated Certificate and Bylaws in existence as of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Parties without the consent of such affected D&O Indemnified Parties. The rights of the D&O Indemnified Parties under this Section 5.12 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, or applicable Law5.10. (b) This Section 5.12 shall survive the consummation of the Merger and the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Entity. (c) Prior to the Effective Time, the Company shall purchase a six-year extended reporting period or tail policy insuring the current and former officers or directors of the Company for the current program of directors’ and officers’ liability insurance maintained by the Company which shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at or prior to the Effective Time. The provisions of this Section 5.12(c) are intended to be for the benefit of, and shall be enforceable by, each of the current and former directors and officers of the Company, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may have.

D&O Indemnification. Schedule 5.9 sets forth all relevant ------------------- ------------ provisions of PRO DUCT's Certificate of Incorporation or Bylaws and any contract pursuant to which PRO DUCT granted any rights of indemnification to any director or officer of PRO DUCT. From and after the Effective Date, to the extent permitted under the Delaware Corporation Law, the Surviving Corporation shall indemnify and hold harmless each person who is, has been at any time prior to the date hereof, or becomes prior to the Effective Date, a director or an officer of PRO DUCT (acollectively, the "D&O Indemnified Parties") For six against all ----------------------- losses, claims, damages, liabilities, costs or expenses (6including attorneys' fees), judgments and amounts paid in settlement in connection with any claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or alleged acts or omissions, by him in his capacity as an officer or director of PRO DUCT, which acts or omissions occurred prior to the Effective Date; provided, however, that the Surviving Corporation shall be under no obligation to indemnify any D&O Indemnified Party pursuant to this Section 5.9 except to the extent that such D&O Indemnified Party was entitled to indemnification from PRO DUCT (pursuant to applicable law or contract) years immediately prior to the Effective Date. The procedures associated with such indemnification shall be the same as those associated with the D&O Indemnified Parties' indemnification from PRO DUCT, immediately prior to the Effective Date. PRO DUCT hereby agrees that, from and after the date hereof until the Effective TimeDate, Parent shall indemnifyit will not amend, defend, and hold harmless modify or otherwise alter its Certificate of Incorporation or Bylaws or any contractual provision under which any D&O Indemnified Party is entitled to indemnification from PRO DUCT at the current and former directors and officers time of the Company (the “D&O Indemnified Parties”) in respect of acts or omissions occurring at or prior to the Effective Time to the fullest extent permitted by Delaware Law or provided under the Company’s Restated Certificate and Bylaws as in effect on the date of this Agreement and pursuant to any indemnity agreements between the Company and such Person as in effect on the date execution of this Agreement. Parent shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation and bylaws regarding elimination of liability of directors, indemnification of directors and officers and employees and advancement of expenses that are no less advantageous to the D&O Indemnified Parties than the corresponding provisions in the Company’s Restated Certificate and Bylaws in existence as of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminated, amended or otherwise modified in any manner that adversely affects any D&O Indemnified Parties without the consent of such affected D&O Indemnified Parties. The rights of the D&O Indemnified Parties under this Section 5.12 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, or applicable Law. (b) This Section 5.12 shall survive the consummation of the Merger and the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent and the Surviving Entity. (c) Prior to the Effective Time, the Company shall purchase a six-year extended reporting period or tail policy insuring the current and former officers or directors of the Company for the current program of directors’ and officers’ liability insurance maintained by the Company which shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at or prior to the Effective Time. The provisions of this Section 5.12(c) 5.9 are intended to be for the benefit of, and shall be enforceable by, the parties hereto and each D&O Indemnified Party and their respective heirs and representatives. CYTYC shall cause to be maintained in effect for a period of seven (7) years after the Closing, the current policies of directors' and former directors officers' liability insurance and officers fiduciary liability insurance maintained by PRO DUCT (provided that CYTYC may substitute therefor policies of at least the Companysame coverage and amounts containing terms and conditions which are, his in the aggregate, no less advantageous to the insured) with respect to claims arising from facts or her heirs and his events that occurred on or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may havebefore the Closing Date.

D&O Indemnification. (a) For six (6) years from and a period of [**] after the Effective TimeClosing Date, Parent the Company shall indemnifynot amend, defendrepeal or otherwise modify any provisions of its certificate of incorporation, and hold harmless bylaws, or any other written agreement with the current and former directors and officers Company as of the Company (the “D&O Indemnified Parties”) date hereof that has been made available to Buyer, in respect of acts each case concerning indemnification, exculpation or omissions occurring at or prior to the Effective Time to the fullest extent permitted by Delaware Law or provided under the Company’s Restated Certificate and Bylaws as in effect on the date of this Agreement and pursuant to any indemnity agreements between the Company and such Person as in effect on the date of this Agreement. Parent shall cause to be maintained in effect provisions in the Surviving Entity’s certificate of incorporation and bylaws regarding elimination limitation of liability of directors, indemnification of directors and officers and employees and advancement of expenses that are no less advantageous to the D&O Indemnified Parties than the corresponding provisions in the Company’s Restated Certificate and Bylaws in existence as officers, fiduciaries or agents of the date of this Agreement. The obligations set forth in this Section 5.12 shall not be terminated, amended or otherwise modified Company in any manner that would affect adversely affects any D&O Indemnified Parties without the consent rights thereunder of such affected D&O Indemnified Parties. The rights persons who, prior to the Closing Date, were directors, officers, employees, fiduciaries or agents of the D&O Indemnified Parties under this Section 5.12 shall be in addition to, and not in substitution for, any other rights that such Persons may have under the Company’s Restated Certificate, Bylaws, and any and all indemnification agreements of or entered into by the Company, except to the extent required by applicable Law and except for any such change that would not affect the application of such provisions to acts or applicable Lawomissions of such individuals prior to the Closing. Notwithstanding anything to the contrary in the certificate of incorporation, bylaws of the Company or its Subsidiaries or any provision in any indemnification or other agreement to which any of them is a party or by which any of them is bound, (i) no exculpation or other provision in the certificate of incorporation or bylaws of the Company or its Subsidiaries or any such agreement shall be deemed to exculpate any such person from its obligations under this Agreement and (ii) no person shall be entitled to indemnification or reimbursement or advancement of expenses under any provision of the certificate of incorporation or bylaws of the Company or its Subsidiaries or any such agreement for any matter for which any Buyer Indemnified Party is entitled to indemnification pursuant to this Agreement. (b) This Section 5.12 shall survive The Company will obtain prior to the consummation Closing Date [**] “tail” insurance policies (the “D&O Tail”) with respect to directors’ and officers’ liability insurance of the Merger type and with the Effective Time, is intended to benefit and may be enforced by the Company, Parent, the Surviving Entity and the D&O Indemnified Parties, and shall be binding on all successors and assigns amount of Parent and the Surviving Entity. (c) Prior to the Effective Time, the Company shall purchase a six-year extended reporting period or tail policy insuring the current and former officers or directors coverage no less favorable than those of the Company for the current program of directors’ and officers’ liability insurance maintained as of the date hereof by the Company which (the “Current Policies”), and with such other terms as are no less favorable in the aggregate than those in the Current Policies. The premium for the D&O Tail (including any Taxes on such premium) and any associated broker, underwriter or similar fees (the “D&O Tail Premium”) shall be effective commencing with the Effective Time and ending six years thereafter and which shall afford coverage for actual or alleged acts or omissions occurring at or paid in full prior to the Effective Time. The provisions of this Section 5.12(c) are intended to be for Closing Date by the benefit of, and shall be enforceable by, each of Company or at the current and former directors and officers of the Company, his or her heirs and his or her representatives and are in addition to, and not in substitution for, any other rights to indemnification or contribution that any such person may haveClosing as a Company Transaction Expense.