Common use of D&O Indemnification Clause in Contracts

D&O Indemnification. (a) The Purchaser will, and will cause the Surviving Corporation to, fulfill, perform and honor in all respects, and will not take any action to alter or impair, any indemnification obligations of the Company to its current and former directors and officers (the “Company Indemnified Persons”) or similar exculpatory provisions eliminating personal liability of directors for monetary damages and providing for advancement of expenses existing in the Company’s certificate of incorporation, bylaws, existing indemnification agreements between the Company and its directors and officers, or any similar written agreement in effect as of the Effective Time, to the extent described on the Company Disclosure Schedule (collectively, the “Company Indemnification Provisions”), for a period of not fewer than six years after the Effective Time, except for any changes in such certificate of incorporation or bylaws which, in each instance, do not directly or indirectly adversely affect the application of such provisions to acts or omissions of such individuals prior to the Effective Time or materially alter or impair the rights of such individuals thereunder. Any claims for indemnification made under this Section 8.1(a) on or prior to the sixth anniversary of the Effective Time shall survive such anniversary until the final resolution thereof. (b) Notwithstanding anything herein to the contrary, the Company may maintain its existing directors’ and officers’ liability insurance covering the Company Indemnified Persons for claims arising out of acts or omissions occurring at or prior to the Effective Time and may prior to the Closing acquire “tail” coverage, which (i) has an effective term of up to six years from the Effective Time, (ii) covers those persons who are covered by the Company’s directors’ and officers’ insurance policy in effect as of the Effective Time and only for actions and omissions occurring on or prior to the Effective Time, and (iii) is expected to contain terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the directors and officers of the Company as of immediately prior to the Effective Time, provided that the premium for such "tail" coverage shall not exceed $75,000 in the aggregate for the entire "tail period." If the Company elects to acquire such “tail” coverage it shall pay the premiums for the full term of the “tail period” and neither the Purchaser nor the Surviving Corporation shall seek to terminate such coverage during the term of the “tail” policy as acquired by the Company. (c) Notwithstanding anything to the contrary in this Agreement, the provisions of this Section 8.1 will survive the consummation of the Merger, shall be binding on all successors and assigns of the Surviving Corporation and the Purchaser, and are intended to be for the benefit of, and will be enforceable by, each present and former director and officer of the Company and his or her heirs and representatives. Following the Effective Time, the obligations of the Purchaser and the Surviving Corporation under this Section 8.1 will not be terminated or modified in such a manner as to adversely affect the rights of any present and former directors and officers of the Company under this Section 8.1 without the consent of such affected present and former directors and officers of the Company.

D&O Indemnification. (a) The Purchaser willFrom and after the Effective Time until the sixth anniversary of the Effective Time, Parent will assume, and will cause the Surviving Corporation to, fulfill, perform to fulfill and honor in all respects, and will not take any action to alter or impair, any indemnification respects the obligations of the Company and each of the Subsidiaries to its current their respective present and former directors and officers (the “Company Indemnified PersonsParties”) pursuant to any indemnification agreements with the Company or similar exculpatory such Subsidiary made available to Parent and any indemnification or advancement provisions eliminating personal liability of directors for monetary damages and providing for advancement of expenses existing in under the Company’s or such Subsidiary’s certificate of incorporation, bylaws, existing indemnification agreements between incorporation or bylaws (or equivalent organizational documents) as in effect on the Agreement Date with respect to their acts and omissions as directors and officers of the Company and its directors and officers, or any similar written agreement in effect as of such Subsidiary occurring prior to the Effective Time, in each case, subject to the extent described on the Company Disclosure Schedule (collectively, the “Company Indemnification Provisions”), for a period of not fewer than six years Applicable Legal Requirements. From and after the Effective Time, except for any changes in such obligations shall be joint and several obligations of Parent and the Surviving Corporation. The certificate of incorporation and bylaws of the Surviving Corporation will contain provisions with respect to advancement, exculpation and indemnification that are at least as favorable in the aggregate to the Indemnified Parties as those contained in the certificate of incorporation and bylaws of the Company (or bylaws whichequivalent organizational documents) as in effect on the Agreement Date, in each instancewhich provisions will not be amended, do not directly repealed or indirectly adversely affect the application otherwise modified for a period of such provisions to acts or omissions of such individuals prior to six years from the Effective Time or materially alter or impair in any manner that adversely affects the rights thereunder of the Indemnified Parties, unless such individuals thereunder. Any claims for indemnification made under this Section 8.1(amodification is required by Applicable Legal Requirements. (b) on or prior to From the Effective Time until the sixth anniversary of the Effective Time Time, the Surviving Corporation shall survive such anniversary until maintain in effect, and Parent shall cause the final resolution thereof. (b) Notwithstanding anything herein Surviving Corporation to maintain in effect, for the benefit of the Indemnified Parties with respect to their acts and omissions as directors and officers of the Company or any Subsidiary occurring prior to the contraryEffective Time, the Company may maintain its existing policy of directors’ and officers’ liability insurance covering maintained by the Company Indemnified Persons for claims arising out or any Subsidiary as of acts or omissions occurring at or the Agreement Date in the form made available by the Company to Parent prior to the Effective Time and may prior Agreement Date (the “Existing D&O Policy”), to the Closing acquire “tail” coverage, which (i) has an effective term of up to six years from the Effective Time, (ii) covers those persons who are covered by the Company’s extent that directors’ and officers’ liability insurance coverage is commercially available; provided that: (i) the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage, including a “tail” or “runoff” insurance policy, (ii) the Surviving Corporation shall not be required to pay annual premiums for the Existing D&O Policy (or for any substitute or “tail” policies) in effect as excess of an amount equal to 300% of the Effective Time most recently paid annual premium for the Existing D&O Policy (the “Maximum Premium”) and only (iii) if requested by Parent, the Company shall issue a broker of record letter acceptable to Parent permitting Parent’s insurance broker to negotiate and place such “tail” or “runoff” insurance of comparable coverage, Parent shall have the right to negotiate such coverage and the Company shall reasonably cooperate therewith. In the event any future annual premiums for actions and omissions occurring on the Existing D&O Policy (or any substitute policies) exceed the Maximum Premium, the Surviving Corporation shall be entitled to reduce the amount of coverage of the Existing D&O Policy (or any substitute or “tail” policies) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. Notwithstanding the foregoing, if the Company in its sole discretion elects, by giving written notice to Parent at least two Business Days prior to the Effective Time, and (iii) is expected to contain terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the directors and officers in lieu of the Company as of immediately prior to the Effective Timeforegoing insurance, provided that the premium for such "tail" coverage shall not exceed $75,000 in the aggregate for the entire "tail period." If the Company elects to acquire such may purchase a comparable “tail” coverage it shall pay or “runoff” extension to the premiums Existing D&O Policy for a period of six years after the full term of Effective Time for a premium not to exceed the “tail period” and neither the Purchaser nor the Surviving Corporation shall seek to terminate such coverage during the term of the “tail” policy as acquired by the CompanyMaximum Premium. (c) Notwithstanding anything to the contrary in this Agreement, the provisions of this This Section 8.1 will 5.13 shall survive the consummation of the Merger, is intended to benefit each of the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and the Purchaser, Parent and are intended to be for the benefit of, and will shall be enforceable by, by each present and former director and officer of the Company Indemnified Party and his or her heirs and representatives. Following , and may not be amended, altered or repealed after the Effective TimeTime without the prior written consent of the affected Indemnified Party (provided that any amendment, alteration or repeal prior the Effective Time shall be governed by Section 7.4). If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.13 that is denied by Parent and/or the Company or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Parent, the obligations of the Purchaser and Company or the Surviving Corporation under shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law. (d) In the event Parent or the Surviving Corporation 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 made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume and succeed to the obligations set forth in this Section 8.1 will not be terminated or modified in such a manner as to adversely affect the rights of any present and former directors and officers of the Company under this Section 8.1 without the consent of such affected present and former directors and officers of the Company5.13.

D&O Indemnification. (a) The Purchaser willFrom and after the Effective Time until the sixth anniversary of the Effective Time, Parent will assume, and will cause the Surviving Corporation to, fulfill, perform to fulfill and honor in all respects, and will not take any action to alter or impair, any indemnification respects the obligations of the Company and each of the Subsidiaries to its current their respective present and former directors and officers (the “Company Indemnified PersonsParties”) pursuant to any indemnification agreements with the Company or similar exculpatory such Subsidiary made available to Parent and any indemnification or advancement provisions eliminating personal liability of directors for monetary damages and providing for advancement of expenses existing in under the Company’s or such Subsidiary’s certificate of incorporation, bylaws, existing indemnification agreements between incorporation or bylaws (or equivalent organizational documents) as in effect on the Agreement Date with respect to their acts and omissions as directors and officers of the Company and its directors and officers, or any similar written agreement in effect as of such Subsidiary occurring prior to the Effective Time, in each case, subject to the extent described on the Company Disclosure Schedule (collectively, the “Company Indemnification Provisions”), for a period of not fewer than six years Applicable Legal Requirements. From and after the Effective Time, except for any changes in such obligations shall be the joint and several obligations of Parent and the Surviving Corporation. The certificate of incorporation and bylaws of the Surviving Corporation will contain provisions with respect to advancement, exculpation and indemnification that are at least as favorable in the aggregate to the Indemnified Parties as those contained in the certificate of incorporation and bylaws of the Company (or bylaws whichequivalent organizational documents) as in effect on the Agreement Date, in each instancewhich provisions will not be amended, do not directly repealed or indirectly adversely affect the application otherwise modified for a period of such provisions to acts or omissions of such individuals prior to six years from the Effective Time or materially alter or impair in any manner that adversely affects the rights thereunder of the Indemnified Parties, unless such individuals thereunder. Any claims for indemnification made under this Section 8.1(amodification is required by Applicable Legal Requirements. (b) on or prior to From the Effective Time until the sixth anniversary of the Effective Time Time, the Surviving Corporation shall survive such anniversary until maintain in effect, and Parent shall cause the final resolution thereof. (b) Notwithstanding anything herein Surviving Corporation to maintain in effect, for the benefit of the Indemnified Parties with respect to their acts and omissions as directors and officers of the Company or any Subsidiary occurring prior to the contraryEffective Time, the Company may maintain its existing policy of directors’ and officers’ liability insurance covering maintained by the Company Indemnified Persons for claims arising out or any Subsidiary as of acts or omissions occurring at or the Agreement Date in the form made available by the Company to Parent prior to the Effective Time and may prior Agreement Date (the “Existing D&O Policy”), to the Closing acquire “tail” coverage, which (i) has an effective term of up to six years from the Effective Time, (ii) covers those persons who are covered by the Company’s extent that directors’ and officers’ liability insurance coverage is commercially available; provided that: (i) the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage, including a “tail” or “runoff” insurance policy, (ii) the Surviving Corporation shall not be required to pay annual premiums for the Existing D&O Policy (or for any substitute or “tail” policies) in effect as excess of an amount equal to 300% of the Effective Time most recently paid annual premium for the Existing D&O Policy (the “Maximum Premium”) and only (iii) if requested by Parent, the Company shall issue a broker of record letter acceptable to Parent permitting Parent’s insurance broker to negotiate and place such “tail” or “runoff” insurance of comparable coverage, Parent shall have the right to negotiate such coverage and the Company shall reasonably cooperate therewith. In the event any future annual premiums for actions and omissions occurring on the Existing D&O Policy (or any substitute policies) exceed the Maximum Premium, the Surviving Corporation shall be entitled to reduce the amount of coverage of the Existing D&O Policy (or any substitute or “tail” policies) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. Notwithstanding the foregoing, if the Company in its sole discretion elects, by giving written notice to Parent at least two Business Days prior to the Effective Time, and (iii) is expected to contain terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the directors and officers in lieu of the Company as of immediately prior to the Effective Timeforegoing insurance, provided that the premium for such "tail" coverage shall not exceed $75,000 in the aggregate for the entire "tail period." If the Company elects to acquire such may purchase a comparable “tail” coverage it shall pay or “runoff” extension to the premiums Existing D&O Policy for a period of six years after the full term of Effective Time for a premium not to exceed the “tail period” and neither the Purchaser nor the Surviving Corporation shall seek to terminate such coverage during the term of the “tail” policy as acquired by the CompanyMaximum Premium. (c) Notwithstanding anything to the contrary in this Agreement, the provisions of this This Section 8.1 will 5.12 shall survive the consummation of the Merger, is intended to benefit each of the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and the Purchaser, and are intended to be for the benefit of, and will shall be enforceable by, by each present and former director and officer of the Company Indemnified Party and his or her heirs and representatives. Following , and may not be amended, altered or repealed after the Effective Time, Time without the obligations prior written consent of the Purchaser and affected Indemnified Party (provided that any amendment, alteration or repeal prior the Surviving Corporation under this Effective Time shall be governed by Section 8.1 will not be terminated or modified in such a manner as to adversely affect the rights of any present and former directors and officers of the Company under this Section 8.1 without the consent of such affected present and former directors and officers of the Company7.4).

D&O Indemnification. (a) The Purchaser willFrom and after the Closing Date until six (6) years from the Closing Date, and will Acquiror shall cause the Surviving Corporation toCompany to indemnify, fulfilldefend and hold harmless to the fullest extent permitted under Law, perform and honor in all respectsthe individuals who on or prior to the Closing Date were directors, and will not take any action to alter officers or impair, any indemnification obligations managers of the Company with respect to its current and former any threatened, pending or completed Action, suit or proceeding arising out of, under or in connection with any acts or omissions by them in their capacities as such or taken at the request of the Company at any time on or prior to the Closing Date against expenses (including attorneys’ fees) incurred by such individual in connection with such Action, suit or proceeding. In addition, Acquiror shall cause the Company to pay or reimburse any expenses (including attorneys’ fees) of any officers, directors and officers or managers entitled to indemnification hereunder in advance of the final disposition of such Action, suit or proceeding to the fullest extent permitted under applicable Law, provided, that the person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law. (b) The Parties hereby agree that the “Company Indemnified Persons”) or similar exculpatory provisions eliminating personal liability of directors for monetary damages and providing for advancement of expenses existing in the Company’s certificate certificates of incorporation, bylaws, existing indemnification limited liability company agreements between and all other organization documents of the Company and its directors and officersshall not be amended, repealed or any similar written agreement in effect as of the Effective Time, to the extent described on the Company Disclosure Schedule (collectively, the “Company Indemnification Provisions”), otherwise modified for a period of not fewer than six (6) years after from the Effective TimeClosing Date in any manner that would adversely affect the rights thereunder of individuals who at or at any time prior to the Closing Date were directors, except for any changes in such certificate officers, managers or employees, of incorporation the Company or bylaws whichotherwise entitled to indemnification pursuant to the Company’s organizational documents, in each instance, do not directly or indirectly adversely affect the application of such provisions to acts or omissions of such individuals prior to the Effective Time or materially alter or impair the rights of such individuals thereunder. Any claims for indemnification made under this Section 8.1(acase expect as required by applicable Law. (c) on On or prior to the sixth anniversary of the Effective Time shall survive such anniversary until the final resolution thereof. (b) Notwithstanding anything herein to the contraryClosing Date, the Contributor shall cause the Company may maintain its existing to obtain or continue directors’ and officers’ liability insurance covering the Company Indemnified Persons for claims arising out of coverage, solely with respect to acts or omissions occurring at prior to the Closing, for the Company (including their respective successors) and individuals who on or prior to the Effective Time and may prior Closing Date were directors, officers, managers or employees of the Company pursuant to an insurance policy for the benefit of such covered Persons for a period from the Closing acquire “tail” coverage, which Date until six (i6) has an effective term of up to six years from the Effective TimeClosing Date, (ii) covers those persons who are no less favorable to such covered by Persons than the Company’s level and scope of directors’ and officers’ liability as set forth in the Contributor’s current directors’ and officers’ liability insurance policy policies in effect as of the Effective Time Closing (including with respect to such covered Person’s ability to make and recover claims against such policies), including, to the extent necessary, by purchasing a prepaid tail policy or policies from Contributor’s current directors’ and officers’ liability insurer (together, such foregoing policy or policies are referred to as the “Tail Policy”). The Parties agree that the Tail Policy shall be the first source of recovery for any Persons with respect to the claims and Liabilities that are the subject of Section 5.08(a) and Section 5.08(b), and Acquiror and the Company shall only be liable for actions indemnification obligations pursuant to Section 5.08(a) and omissions occurring on Section 5.08(b) to the extent the such claims and Liabilities are not recoverable under the Tail Policy. No Tail Policy shall be amended, repealed or otherwise modified for a period of six (6) years from the Closing Date in any manner that would adversely affect the rights thereunder of individuals who at or at any time prior to the Effective TimeClosing Date were directors, and (iii) is expected to contain terms and conditions (includingofficers, without limitationmanagers or employees, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the directors and officers of the Company as or otherwise entitled to indemnification pursuant to such policy. In the event the Contributor is seeking to obtain, continue or purchase a Tail Policy and such insurer declines to provide the Tail Policy, the Contributor shall use reasonable best efforts to identify and obtain similar coverage from another insurance carrier with a credit rating substantially similar to or exceeding that of immediately prior such former insurer. If after such reasonable best efforts another such insurance carrier is unable or unwilling to provide such similar coverage, the Contributor shall cause the Company to purchase the best coverage available on terms reasonably acceptable to Acquiror. Notwithstanding anything in this Agreement to the Effective Timecontrary, provided that in no event shall the premium for such "tail" coverage shall not exceed $75,000 in the aggregate for the entire "tail period." If Contributor or the Company elects be required to acquire such “tail” coverage it shall pay the premiums for the full term in excess of an amount equal to 300% of the “tail period” and neither the Purchaser nor the Surviving Corporation shall seek to terminate such coverage during the term annual premium of the “tail” policy as acquired by Contributor’s current directors’ and officers’ liability insurance policies applicable or attributable to coverage of the Company. (cd) Notwithstanding anything to the contrary in this Agreement, the The provisions of this Section 8.1 will survive the consummation of the Merger, shall be binding on all successors and assigns of the Surviving Corporation and the Purchaser, and 5.08 are intended to be for the benefit of, and will shall be enforceable by, each present and former director and officer of the Company and his or her heirs and representatives. Following the Effective Time, the obligations of the Purchaser and the Surviving Corporation Person entitled to indemnification under this Section 8.1 will Section, his, her, or its heirs or successors in interest (as applicable) and his, her or its Representatives (as applicable) and are in addition to, and not be terminated in substitution for, any other rights to indemnification or modified in contribution that any such a manner as to adversely affect the rights of any present and former directors and officers of the Company under this Section 8.1 without the consent of such affected present and former directors and officers of the CompanyPerson may have by contract or otherwise.

D&O Indemnification. (a) The Purchaser willFrom and after the Effective Time until the sixth anniversary of the Effective Time, Parent will assume, and will cause the Surviving Corporation to, fulfill, perform to fulfill and honor in all respects, and will not take any action to alter or impair, any indemnification respects the obligations of the Company and each of the Subsidiaries to its current their respective present and former directors and officers (the “Company Indemnified PersonsParties”) pursuant to any indemnification agreements with the Company or similar exculpatory such Subsidiary made available to Parent and any indemnification or advancement provisions eliminating personal liability of directors for monetary damages and providing for advancement of expenses existing in under the Company’s or such Subsidiary’s certificate of incorporation, bylaws, existing indemnification agreements between incorporation or bylaws (or equivalent organizational documents) as in effect on the Original Agreement Date with respect to their acts and omissions as directors and officers of the Company and its directors and officers, or any similar written agreement in effect as of such Subsidiary occurring prior to the Effective Time, in each case, subject to the extent described on the Company Disclosure Schedule (collectively, the “Company Indemnification Provisions”), for a period of not fewer than six years Applicable Legal Requirements. From and after the Effective Time, except for any changes in such obligations shall be joint and several obligations of Parent and the Surviving Corporation. The certificate of incorporation and bylaws of the Surviving Corporation will contain provisions with respect to advancement, exculpation and indemnification that are at least as favorable in the aggregate to the Indemnified Parties as those contained in the certificate of incorporation and bylaws of the Company (or bylaws whichequivalent organizational documents) as in effect on the Original Agreement Date, in each instancewhich provisions will not be amended, do not directly repealed or indirectly adversely affect the application otherwise modified for a period of such provisions to acts or omissions of such individuals prior to six years from the Effective Time or materially alter or impair in any manner that adversely affects the rights thereunder of the Indemnified Parties, unless such individuals thereunder. Any claims for indemnification made under this Section 8.1(amodification is required by Applicable Legal Requirements. (b) on or prior to From the Effective Time until the sixth anniversary of the Effective Time Time, the Surviving Corporation shall survive such anniversary until maintain in effect, and Parent shall cause the final resolution thereof. (b) Notwithstanding anything herein Surviving Corporation to maintain in effect, for the benefit of the Indemnified Parties with respect to their acts and omissions as directors and officers of the Company or any Subsidiary occurring prior to the contraryEffective Time, the Company may maintain its existing policy of directors’ and officers’ liability insurance covering maintained by the Company Indemnified Persons for claims arising out or any Subsidiary as of acts the Agreement Date in the form made available or omissions occurring at or delivered by the Company to Parent prior to the Effective Time and may prior Agreement Date (the “Existing D&O Policy”), to the Closing acquire “tail” coverage, which (i) has an effective term of up to six years from the Effective Time, (ii) covers those persons who are covered by the Company’s extent that directors’ and officers’ liability insurance coverage is commercially available; provided that: (i) the Surviving Corporation may substitute for the Existing D&O Policy a policy or policies of comparable coverage, including a “tail” or “runoff” insurance policy, (ii) the Surviving Corporation shall not be required to pay annual premiums for the Existing D&O Policy (or for any substitute or “tail” policies) in effect as excess of an amount equal to 300% of the Effective Time most recently paid annual premium for the Existing D&O Policy (the “Maximum Premium”) and only (iii) if requested by Parent, the Company shall issue a broker of record letter acceptable to Parent permitting Parent’s insurance broker to negotiate and place such “tail” or “runoff” insurance of comparable coverage, Parent shall have the right to negotiate such coverage and the Company shall reasonably cooperate therewith. In the event any future annual premiums for actions and omissions occurring on the Existing D&O Policy (or any substitute policies) exceed the Maximum Premium, the Surviving Corporation shall be entitled to reduce the amount of coverage of the Existing D&O Policy (or any substitute or “tail” policies) to the amount of coverage that can be obtained for a premium equal to the Maximum Premium. Notwithstanding the foregoing, if the Company in its sole discretion elects, by giving written notice to Parent at least two Business Days prior to the Effective Time, and (iii) is expected to contain terms and conditions (including, without limitation, coverage amounts) that are no less advantageous, when taken as a whole, to those applicable to the directors and officers in lieu of the Company as of immediately prior to the Effective Timeforegoing insurance, provided that the premium for such "tail" coverage shall not exceed $75,000 in the aggregate for the entire "tail period." If the Company elects to acquire such may purchase a comparable “tail” coverage it shall pay or “runoff” extension to the premiums Existing D&O Policy for a period of six years after the full term of Effective Time for a premium not to exceed the “tail period” and neither the Purchaser nor the Surviving Corporation shall seek to terminate such coverage during the term of the “tail” policy as acquired by the CompanyMaximum Premium. (c) Notwithstanding anything to the contrary in this Agreement, the provisions of this This Section 8.1 will 5.13 shall survive the consummation of the Merger, is intended to benefit each of the Indemnified Parties, shall be binding on all successors and assigns of the Surviving Corporation and the Purchaser, Parent and are intended to be for the benefit of, and will shall be enforceable by, by each present and former director and officer of the Company Indemnified Party and his or her heirs and representatives. Following , and may not be amended, altered or repealed after the Effective TimeTime without the prior written consent of the affected Indemnified Party (provided that any amendment, alteration or repeal prior the Effective Time shall be governed by Section 7.4). If any Indemnified Party makes any claim for indemnification or advancement of expenses under this Section 5.13 that is denied by Parent and/or the Company or the Surviving Corporation, and a court of competent jurisdiction determines that the Indemnified Party is entitled to such indemnification or advancement of expenses, then Parent, the obligations of the Purchaser and Company or the Surviving Corporation under shall pay the Indemnified Party’s costs and expenses, including reasonable legal fees and expenses, incurred by the Indemnified Party in connection with pursuing his or her claims to the fullest extent permitted by law. (d) In the event Parent or the Surviving Corporation 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 made so that the successors and assigns of Parent or the Surviving Corporation, as the case may be, shall assume and succeed to the obligations set forth in this Section 8.1 will not be terminated or modified in such a manner as to adversely affect the rights of any present and former directors and officers of the Company under this Section 8.1 without the consent of such affected present and former directors and officers of the Company5.13.