Common use of Director and Officer Indemnification and Insurance Clause in Contracts

Director and Officer Indemnification and Insurance. (a) Buyers agree that all rights to indemnification, advancement of expenses and exculpation by the LiveArea Companies now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an officer or director of any of the LiveArea Companies, as provided in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof and disclosed in Section 5.05(a) of the Disclosure Schedules, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms; provided, however, that that Buyers shall be permitted to revise any such indemnification, advancement of expenses and exculpation provisions in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director of the LiveArea Companies. (b) Parent shall (i) maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of directors’ and officers’ liability insurance maintained for the directors and officers of the LiveArea Companies immediately prior to the Closing Date (provided that Parent may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies when compared to the insurance maintained as of the date hereof), or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies, in each case with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the transactions contemplated by the Transaction Documents), with the cost of such policies paid for by Parent. (c) The obligations of Buyers and the LiveArea Companies under this Section 5.05 shall not be terminated or modified in such a manner as to adversely affect any director or officer to whom this Section 5.05 applies without the consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 5.05 applies shall be third-party beneficiaries of this Section 5.05, each of whom may enforce the provisions of this Section 5.05). (d) In the event Buyers, the LiveArea Companies 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyers or the LiveArea Companies, as the case may be, shall assume all of the obligations set forth in this Section 5.05.

Director and Officer Indemnification and Insurance. (a) Buyers Parent and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation by the LiveArea Companies Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an officer or director of any of the LiveArea CompaniesCompany, as provided in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof and disclosed in Section 5.05(a) of the Disclosure Schedules, Company Operating Agreement shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms; provided, however, that that Buyers shall be permitted to revise any such indemnification, advancement of expenses and exculpation provisions in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director of the LiveArea Companies. (b) Parent shall (i) maintain in effect for a period of six (6) years after the Closing DateThe Company shall, if availableat its sole cost and expense, the current policies of directors’ and officers’ liability insurance maintained for the directors and officers of the LiveArea Companies immediately prior to the Closing Date (provided that Parent may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies when compared to the insurance maintained as of the date hereof), or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea CompaniesCompany, in each case with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the transactions contemplated by this Agreement). The Surviving Company shall, and Parent shall cause the Transaction DocumentsSurviving Company to maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of directors’ and officers’ liability insurance maintained by the Company immediately prior to the Closing Date (provided that the Surviving Company may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the Company when compared to the insurance maintained by the Company as of the date hereof), with the cost of such policies paid for by Parent. (c) The obligations of Buyers Parent and the LiveArea Companies Surviving Company under this Section 5.05 shall not be terminated or modified in such a manner as to adversely affect any director or officer to whom this Section 5.05 applies without the consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 5.05 applies shall be third-party beneficiaries of this Section 5.05, each of whom may enforce the provisions of this Section 5.05). (d) In the event BuyersParent, the LiveArea Companies Surviving Company 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyers Parent or the LiveArea CompaniesSurviving Company, as the case may be, shall assume all of the obligations set forth in this Section 5.05.

Director and Officer Indemnification and Insurance. (a) Buyers Buyer and the Company agree that all rights to indemnification, advancement of expenses and exculpation by the LiveArea Companies Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing DateClosing, an officer or director of any of the LiveArea Companies, as provided in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof and disclosed in Section 5.05(a) of the Disclosure Schedules, Company shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms; provided, however, that that Buyers shall be permitted to revise any such indemnification, advancement of expenses and exculpation provisions in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director of the LiveArea Companies. (b) Parent After the Closing, the Company shall, and Buyer shall cause the Company to, (i) maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of directors’ and officers’ liability insurance maintained for by the directors and officers of the LiveArea Companies Company immediately prior to the Closing Date (provided that Parent that, after the Closing Date, the Company may substitute therefor policies, policies of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies Company when compared to the insurance maintained by the Company as of the date hereof), ) or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea CompaniesCompany, in each case with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the transactions contemplated by the Transaction Documentsthis Agreement); provided that in connection with this Section 6.6(b), neither the Company nor Buyer shall pay a one-time premium (in connection with a single premium tail policy described above) in excess of an amount equal to 200% of the cost current annual premium paid by the Company for its existing coverage or be obligated to pay annual premiums (in connection with any other directors and officers insurance policy described above) in excess of such policies an amount equal to 200% of the current annual premium paid by the Company for by Parentits existing coverage. (c) The obligations of Buyers the Company and the LiveArea Companies Buyer under this Section 5.05 6.6 shall survive the Closing and shall not be terminated or modified in such a manner as to adversely affect any Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing, an officer or director or officer of the Company to whom this Section 5.05 6.6 applies without the consent of such affected director or officer Person (it being expressly agreed that the directors and officers such Persons to whom this Section 5.05 6.6 applies shall be third-party beneficiaries of this Section 5.056.6, each of whom may enforce the provisions of this Section 5.056.6). (d) In the event Buyersthe Company, the LiveArea Companies Buyer or any of their respective successors or permitted assigns (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and permitted assigns of Buyers the Company or the LiveArea CompaniesBuyer, as the case may be, shall assume all of the obligations set forth in this Section 5.056.6.

Director and Officer Indemnification and Insurance. (a) Buyers agree Purchaser agrees that all rights to indemnification, advancement of expenses and exculpation by the LiveArea Companies Company and its Subsidiaries for acts or omissions occurring at or prior to the Closing now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an officer officer, director, or director of any of the LiveArea Companies, as provided in the certificate of incorporation, by-laws or other organizational documentsmanager, as applicable, of the LiveArea CompaniesCompany or any of its Subsidiaries, as provided in the Governing Documents of the Company or such Subsidiary, in each case as in effect on the date of this Agreement, or pursuant to any other agreements Contract in effect on the date hereof and disclosed in Section 5.05(a) of the Disclosure Scheduleshereof, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms; providedterms and shall not be amended, however, that that Buyers shall be permitted to revise any such indemnification, advancement of expenses and exculpation provisions in the certificate of incorporation, by-laws repealed or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director of the LiveArea Companies. (b) Parent shall (i) maintain in effect otherwise modified for a period of six (6) years after the Closing Date, if available, Date in any manner that would adversely affect the current policies rights thereunder of directors’ and officers’ liability insurance maintained such individuals for the directors and officers of the LiveArea Companies immediately acts or omissions occurring at or prior to the Closing Date Closing. (provided that Parent may substitute therefor policiesb) The Company shall, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies when compared to the insurance maintained as of the date hereof)its own expense, or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors directors, officers and officers managers of the LiveArea CompaniesCompany and its Subsidiaries when compared to the insurance maintained by or on behalf of the Company and its Subsidiaries as of the date hereof, in each case case, with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the transactions contemplated by Transaction). Alternatively, the Transaction Documents)Company may, at Cobra Green's expense, arrange for the continuation of the same coverage and amounts, and containing the same terms and conditions as is in force under the policy which provides coverage to Cobra Green as of the Closing Date for the directors, officers and managers of the Company and its Subsidiaries, but solely with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the cost Transaction) and the maintenance of such policies paid coverage for by Parenta period of six (6) years from the Closing Date. (c) The obligations of Buyers Purchaser and the LiveArea Companies Company under this Section 5.05 6.10 shall not be terminated or modified in such a manner as to adversely affect any director director, officer or officer manager to whom this Section 5.05 6.10 applies without the consent of such affected director director, officer or officer manager (it being expressly agreed that the directors directors, officers and officers managers to whom this Section 5.05 6.10 applies shall be third-party beneficiaries of this Section 5.056.10, each of whom may enforce the provisions of this Section 5.056.10). (d) In the event BuyersPurchaser, the LiveArea Companies Company or any Subsidiary of the Company 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyers Purchaser, the Company or the LiveArea Companiessuch Subsidiary, as the case may be, shall assume all of the obligations set forth in this Section 5.056.10.

Director and Officer Indemnification and Insurance. (a) Buyers Purchasers agree that all rights to indemnification, advancement of expenses and exculpation by the LiveArea Companies Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof of this Agreement or who becomes prior to the Closing Date, an officer or director of any of the LiveArea CompaniesCompany, as provided in the certificate of incorporation, incorporation or by-laws or other organizational documents, as applicable, of the LiveArea CompaniesCompany, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof of this Agreement and disclosed in Section 5.05(a5.07(a) of the Disclosure Schedules, shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms; provided, however, that that Buyers shall be permitted to revise any such indemnification, advancement of expenses and exculpation provisions in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director of the LiveArea Companies. (b) Parent The Company shall, and Purchasers shall cause the Company to: (i) maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of directors’ and officers’ liability insurance maintained for by the directors and officers of the LiveArea Companies Company immediately prior to the Closing Date (provided that Parent the Company may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies Company when compared to the insurance maintained by the Company as of the date hereofof this Agreement), or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea CompaniesCompany, in each case with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the transactions contemplated by this Agreement); provided, however, that the Transaction Documents)Company shall not be required to pay an annual premium for the insurance policies in excess of two hundred percent (200%) of the last annual premium paid prior to the date of this Agreement or, with if less, the cost of such policies paid for by Parenta policy providing coverage on the same terms as the Company’s existing policy as of the date of this Agreement. (c) The obligations of Buyers Purchasers and the LiveArea Companies Company under this Section 5.05 5.07 shall not be terminated or modified in such a manner as to adversely affect any director or officer to whom this Section 5.05 5.07 applies without the consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 5.05 5.07 applies shall be third-party beneficiaries of this Section 5.055.07, each of whom may enforce the provisions of this Section 5.055.07). (d) In the event BuyersPurchasers, the LiveArea Companies Company or any of their respective successors or assigns assigns: (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyers Purchasers or the LiveArea CompaniesCompany, as the case may be, shall assume all of the obligations set forth in this Section 5.055.07.

Director and Officer Indemnification and Insurance. (a) Buyers RDE and Merger Sub agree that all rights to indemnification, advancement of expenses and exculpation by the LiveArea Companies CardCash now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an officer or director of any of the LiveArea CompaniesCardCash, as provided in the certificate of incorporation, by-laws incorporation or other organizational documents, as applicable, bylaws of the LiveArea CompaniesCardCash, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof and disclosed in Section 5.05(a) of the Disclosure Scheduleson Schedule 5.15(a), shall survive the Closing Date and shall continue in full force and effect in accordance with their respective terms; provided, however, that that Buyers shall be permitted to revise any such indemnification, advancement of expenses and exculpation provisions in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director of the LiveArea Companies. (b) Parent The Surviving Corporation shall, and RDE shall cause the Surviving Corporation to (i) maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of directors’ and officers’ liability insurance maintained for the directors and officers of the LiveArea Companies by CardCash immediately prior to the Closing Date (provided that Parent the Surviving Corporation may substitute therefor policies, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies CardCash when compared to the insurance maintained by CardCash as of the date hereof), or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amounts, and containing terms and conditions that are not less advantageous to the directors and officers of CardCash when compared to the LiveArea Companiesinsurance maintained by CardCash as of the date hereof, in each case with respect to claims arising out of or relating to events which occurred on or prior to the Closing Date (including in connection with the transactions contemplated by the Transaction Documentsthis Agreement), with the cost of such policies paid for by Parent. (c) The obligations of Buyers RDE and the LiveArea Companies Surviving Corporation under this Section 5.05 5.15 shall not be terminated or modified in such a manner as to adversely affect any director or officer to whom this Section 5.05 5.15 applies without the consent of such affected director or officer (it being expressly agreed that the directors and officers to whom this Section 5.05 5.15 applies shall be third-party beneficiaries of this Section 5.055.15, each of whom may enforce the provisions of this Section 5.055.15). (d) In the event BuyersRDE, the LiveArea Companies 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyers RDE or the LiveArea CompaniesSurviving Corporation, as the case may be, shall assume all of the obligations set forth in this Section 5.055.15.

Director and Officer Indemnification and Insurance. (a) Buyers agree From and after the Effective Time, it is understood and agreed that all rights to indemnification, advancement of expenses and exculpation indemnification by the LiveArea Companies Company now existing in favor of each Person who is now, or has been at any time prior to the date hereof or who becomes prior to the Closing Date, an present and former director and officer or director of any of the LiveArea CompaniesCompany (the “Company D&O Indemnified Parties”), as provided in the certificate of incorporation, by-laws or other organizational documents, as applicable, Constitutive Documents of the LiveArea CompaniesCompany, in each case as in effect on the date of this Agreement, or pursuant to any other agreements in effect on the date hereof and disclosed in Section 5.05(a) of the Disclosure Schedules, shall survive the Closing Date Merger for the duration of and shall continue in full force and effect in accordance with their respective terms; provided, however, that that Buyers shall be permitted subject to revise any such indemnification, advancement of expenses and exculpation the provisions in the certificate of incorporation, by-laws or other organizational documents, as applicable, of the LiveArea Companies (i) when required by applicable Law or (ii) to the extent such revisions are no less favorable to each Person who is now, or has been at any time prior to the date hereof, an officer or director “tail” policy of the LiveArea Companies. (b) Parent shall (i) maintain in effect for a period of six (6) years after the Closing Date, if available, the current policies of existing directors’ and officers’ liability insurance maintained for policies (the directors and officers “D & O Insurance”). (b) Buyer shall cause the Surviving Corporation to purchase a “tail” policy under the Company’s existing D&O Insurance that (i) has an effective term of six years from the LiveArea Companies immediately prior to the Closing Date (provided that Parent may substitute therefor policiesEffective Time, of at least the same coverage and amounts and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies when compared to the insurance maintained as of the date hereof), or (ii) obtain as of the Closing Date “tail” insurance policies with a claims period of six (6) years from the Closing Date with at least the same coverage and amountscovers those persons who are currently covered, and containing terms and conditions that are not less advantageous to the directors and officers of the LiveArea Companies, in each case with respect to claims arising out of or relating to events which occurred will be covered on or prior to the Closing Date Effective Time, by the D&O Insurance in effect on the date hereof for actions and omissions occurring on or prior to the Effective Time and (iii) contains terms and conditions (including without limitation coverage amounts) that are at least as favorable in connection with the transactions contemplated aggregate as the terms and conditions of the D&O Insurance in effect on the date hereof. Notwithstanding the foregoing, in no event shall Buyer or the Surviving Corporation be obligated to expend an aggregate amount for such tail policy in excess of 175% of the premium paid by the Transaction Documents)Company in the year ending December 31, with the cost of such policies paid 2010 for by ParentD&O Insurance in order to maintain or procure insurance coverage pursuant to this paragraph. (c) This Section 5.13 shall survive consummation of the Merger at the Effective Time, is intended to benefit the Company, Buyer, the Surviving Corporation and the Company D&O Indemnified Parties, and shall be binding on all successors and assigns of Buyer and the Surviving Corporation. (d) The obligations of Buyers Buyer and the LiveArea Companies Surviving Corporation under this Section 5.05 5.13 shall not be terminated or modified in such a manner as to adversely affect any director or officer Company D&O Indemnified Parties to whom this Section 5.05 5.13 applies without the consent of such the affected director or officer Person (it being expressly agreed that the directors and officers Company D&O Indemnified Parties to whom this Section 5.05 5.13 applies shall be third-third party beneficiaries of this Section 5.05, each of whom may enforce the provisions of this Section 5.055.13). (d) In the event Buyers, the LiveArea Companies 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 in such consolidation or merger or (ii) transfers all or substantially all of its properties and assets to any Person, then, and in either such case, proper provision shall be made so that the successors and assigns of Buyers or the LiveArea Companies, as the case may be, shall assume all of the obligations set forth in this Section 5.05.