Common use of D&O Liabilities Clause in Contracts

D&O Liabilities. (a) Effective upon the Closing Date, the Acquiror shall, on its own behalf and on behalf of each of its Affiliates (including the Companies and the Transferred Subsidiaries), irrevocably waive, release and discharge forever each former director, statutory auditor and officer of the Companies and the Transferred Subsidiaries who resigned effective immediately after the Closing from any and all liabilities and obligations to, and agreements or understandings with, the Companies and Transferred Subsidiaries (or any of their respective Affiliates) of any kind or nature whatsoever, including in respect of rights of the Acquiror and its Affiliates (including the Companies and the Transferred Subsidiaries) to receive contribution or indemnification from such former officers, statutory auditors and directors, in each case whether absolute or contingent, liquidated or unliquidated, and whether arising hereunder or under any other agreement or understanding or otherwise at Law or in equity, and the Acquiror hereby covenants and agrees on its own behalf and on behalf of each of its Affiliates (including the Companies and the Transferred Subsidiaries) that it will not seek to recover any amounts in connection therewith or thereunder from any such former director, statutory auditor or officer; provided, however, that the Acquiror shall not, for itself or for any of its Affiliates (including the Companies and the Transferred Subsidiaries), waive, release or discharge any such director, statutory auditor or officer from, or covenant not to seek to recover any amounts for, any liabilities or obligations, or agreements or understandings, in each case, to the extent related to or arising from any willful misconduct by such director, auditor or officer. (b) After the Closing Date, the Acquiror agrees that it shall not, and shall cause each of its Affiliates (including the Companies and the Transferred Subsidiaries) not to, amend their organizational documents or other instruments in a manner that would affect adversely in any material respect the rights of any individual who served as a director, statutory auditor or officer of any Company or Transferred Subsidiary at any time prior to the Closing Date (each, a “D&O Indemnified Person”) to be indemnified, either under Japanese law or other applicable Law, as those rights existed immediately prior to the Closing Date, against any costs or expenses (including attorneys’ fees and expenses of investigation, defense and ongoing monitoring) judgments, penalties, fines, losses, charges, demands, actions, suits, proceedings, settlements, assessments, deficiencies, Taxes, interest, obligations, damages, liabilities or amounts paid in settlement incurred in connection with any claim, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing Date and relating to the fact that the D&O Indemnified Person was a director, statutory auditor or officer of any Company or Transferred Subsidiary, whether asserted or claimed prior to, at or after the Closing Date; provided, however, that the Acquiror may cause any of its Affiliates (including, following the Closing Date, the Companies and the Transferred Subsidiaries) to effect such amendments to its articles of incorporation and other organizational documents or instruments as are necessary to conform the provisions thereof in respect of director and officer indemnification, whether in their entirety or in part, to the Acquiror’s director and officer indemnification standard as attached hereto as Exhibit H.

D&O Liabilities. (a) Effective upon the Closing Date, the Acquiror shall, on its own behalf From and on behalf of each of its Affiliates (including the Companies and the Transferred Subsidiaries), irrevocably waive, release and discharge forever each former director, statutory auditor and officer of the Companies and the Transferred Subsidiaries who resigned effective immediately after the Closing from any and all liabilities and obligations toClosing, and agreements or understandings with, the Companies and Transferred Subsidiaries (or any of their respective Affiliates) of any kind or nature whatsoever, including in respect of rights of the Acquiror and its Affiliates (including the Companies and the Transferred Subsidiaries) to receive contribution or indemnification from such former officers, statutory auditors and directors, in each case whether absolute or contingent, liquidated or unliquidated, and whether arising hereunder or under any other agreement or understanding or otherwise at Law or in equity, and the Acquiror hereby covenants and agrees on its own behalf and on behalf of each of its Affiliates (including the Companies and the Transferred Subsidiaries) that it will not seek to recover any amounts in connection therewith or thereunder from any such former director, statutory auditor or officer; provided, however, that the Acquiror shall not, for itself or for any of its Affiliates (including the Companies and the Transferred Subsidiaries), waive, release or discharge any such director, statutory auditor or officer from, or covenant not to seek to recover any amounts for, any liabilities or obligations, or agreements or understandings, in each case, to the extent related to or arising from any willful misconduct by such director, auditor or officer. (b) After the Closing Date, the Acquiror agrees that it Buyer shall not, and shall cause each of its Affiliates (including the Companies and the Transferred Subsidiaries) Companies not to, amend their organizational documents or other instruments in a manner take any steps that would reasonably be expected to affect adversely in any material respect the rights of any individual who served as a director, statutory auditor director or officer of any Company or of the Transferred Subsidiary Companies at any time prior to the Closing Date (each, a “D&O Indemnified Person”) to be indemnified, either under Japanese law Applicable Law or other applicable Lawthe Organizational Documents of the Transferred Companies, as those rights applicable, as they existed immediately prior to the Closing DateClosing, against any costs or expenses (including attorneys’ fees and expenses of investigation, defense and ongoing monitoring) ), judgments, penalties, fines, losses, charges, demands, actions, suits, proceedings, settlements, assessments, deficiencies, Taxes, interest, obligations, damages, liabilities Liabilities or amounts paid in settlement incurred in connection with any claim, whether civil, criminal, administrative or investigative, arising out of or pertaining to matters existing or occurring at or prior to the Closing Date and relating to the fact that the D&O Indemnified Person was a director, statutory auditor director or officer of any Company or a Transferred SubsidiaryCompany, whether asserted or claimed prior to, at or after the Closing Date; provided. For the six (6)-year period commencing immediately after the Closing, however, that Buyer shall cause the Acquiror may cause any of its Affiliates (including, following Transferred Companies to maintain in effect directors’ and officers’ liability insurance covering acts or omissions occurring at or prior to the Closing Datewith respect to those persons who are currently (and any additional persons who at or prior to the Closing become) covered by the Transferred Companies’ directors’ and officers’ liability insurance policies, including any D&O Indemnified Person, on terms with respect to such coverage, and in an amount, not less favorable to such individuals than those of such policies in effect on the date of this Agreement (or the Company may substitute therefor policies, issued by reputable insurers, of at least the same coverage with respect to matters occurring prior to the Closing; provided that any substitution or replacement of existing policies shall not result in any material gaps or lapses of coverage with respect to facts, events, acts or omissions occurring at or prior to the Closing). The provisions of this Section 5.9 are intended to be in addition to, and not in substitution for, and shall not impair any other rights to indemnification or contribution that any such Person may have by contract, under the applicable Organizational Documents of the Transferred Companies, under Applicable Law, or otherwise. (b) The provisions of this Section 5.9 are intended to be for the benefit of, and enforceable by, each D&O Indemnified Person and such D&O Indemnified Person’s estate, heirs and representatives. Notwithstanding anything in this Agreement to the contrary, the Companies and obligations under this Section 5.9 shall not be terminated, modified or amended in any way so as to adversely affect any D&O Indemnified Person without the Transferred Subsidiaries) to effect such amendments to its articles prior written consent of incorporation and other organizational documents or instruments as are necessary to conform the provisions thereof in respect of director and officer indemnification, whether in their entirety or in part, to the Acquiror’s director and officer indemnification standard as attached hereto as Exhibit H.▇▇▇▇ Seller.