Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or shall cause the Surviving Corporation to, indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or thereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCL, the Company's certificate of incorporation or by-laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim after the Company Effective Time, Laser shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto. (b) Laser and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company. (c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing substantially similar coverage in amounts and on terms no less advantageous than that currently provided to such existing and former directors and officers; provided further that neither Laser nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount. (d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 4 contracts
Samples: Merger Agreement (CLN Holdings Inc), Merger Agreement (Coleman Worldwide Corp), Merger Agreement (Sunbeam Corp/Fl/)
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser Crane shall, or shall cause the Company (or, if after the Effective Time, the Surviving Corporation Corporation) to, indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or an officer of the Company (an "Indemnified Person") of the Company or any of its Subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, each a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or an officer of the Company or any of its Subsidiaries or is or was serving at the request of the Company or any of its Subsidiaries as a director, officer, employee director or agent an officer of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCL, PBCL and the Company's certificate Articles of incorporation Incorporation or byBy-laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser Crane nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company Crane or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof5.08. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Timeconsummation of the Offer, Laser Crane shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event case of a final non-appealable nonappealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled theretoto be indemnified therefor.
(b) Laser and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser Crane or the Surviving Corporation shall use reasonable best efforts to obtain a maintain the Company's existing directors' and officers' liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing Time; provided, however, that Crane may substitute therefor policies of substantially similar coverage in (including pursuant to Crane's own policy) and amounts and on containing terms no less advantageous than that currently provided to such existing and former directors and or officers; provided further that, subject to the preceding proviso, if the existing D&O Insurance expires or is canceled during such period, Crane or the Surviving Corporation shall use their best efforts to obtain substantially similar D&O Insurance; and provided further that neither Laser Crane nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(dc) The provisions In the event Crane or Purchaser or any of their 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, in each such case, to the extent necessary to effectuate the purposes of this Section 7.8 are intended to be for the benefit of5.08, and proper provision shall be enforceable by, each Indemnified Person, his made so that the successors and assigns of Crane and Purchaser assume the obligations set forth in this Section 5.08 and none of the actions described in clauses (i) or her heirs and his or her personal representatives(ii) shall be taken until such provision is made.
Appears in 3 contracts
Samples: Merger Agreement (Liberty Technologies Inc), Merger Agreement (Liberty Technologies Inc), Merger Agreement (Crane Co /De/)
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser Bethlehem shall, or shall cause the Surviving Corporation to, indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director director, officer, employee or officer of the Company agent (an "Indemnified Person") of the Company or any of its subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, each a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director director, officer, employee or officer agent of the Company or any of its subsidiaries or is or was serving at the request of the Company or any of its subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCL, the Company's certificate Restated Certificate of incorporation Incorporation or byBy-laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser Bethlehem nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company Bethlehem or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof5.09. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Time, Laser Bethlehem shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event case of a final non-appealable nonappealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled theretoto be indemnified therefor.
(b) Laser Bethlehem and the Company agree that all rights to indemnificationindemnification or liabilities, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate Restated Certificate of incorporation Incorporation or byBy-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights rights, liabilities and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such six-year period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation Restated Certificate or byIncorporation or By-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to LaserBethlehem; and provided further that nothing in this Section 7.8 5.09 shall impair any rights or obligations of any current or former director or officer of the Company; and provided further that nothing in this Section 5.09 shall require Bethlehem to amend its certificate of incorporation or by-laws.
(c) Laser Bethlehem or the Surviving Corporation shall use reasonable best efforts to obtain a maintain the company's existing directors' and officers' liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing Time; provided, however, that Bethlehem may substitute therefor policies of substantially similar coverage in (including pursuant to Bethlehem's own policy) and amounts and on containing terms no less advantageous than that currently provided to such existing and former directors and or officers; provided further that, subject to the preceding proviso, if the existing D&O Insurance expires or is canceled during such period, Bethlehem or the Surviving Corporation shall use their best efforts to obtain substantially similar D&O Insurance; and provided further that neither Laser Bethlehem nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 2 contracts
Samples: Merger Agreement (Bethlehem Steel Corp /De/), Merger Agreement (Lukens Inc)
Continuance of Existing Indemnification Rights. (a) For six (6) years The Company will, and after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or shall Purchaser agrees that it will cause the Surviving Corporation to, indemnifyuntil the expiration of any applicable statutes of limitation, defend (i) indemnify and hold harmless any person who is noweach present and former director, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer and employee of the Company (an collectively, the "Company Indemnified PersonParties") against all losses, claims, damages, liabilities, any costs and or expenses (including ---------------------------- reasonable attorneys' fees and expensesfees), judgments, fines, losses losses, claims, damages or liabilities (collectively, "Costs") (but only to the extent such Costs are not ----- otherwise covered by insurance and amounts paid in settlement paid) incurred in connection with any actual or threatened claim, action, suit, claim, proceeding or investigation investigation, whether civil, criminal, administrative or investigative (eachcollectively, a "ClaimClaims") ), arising out of or ------ pertaining to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or thereby, in each case to the extent that any such Claim pertains to any matter or fact arising, matters existing or occurring at or prior to or at the Company Effective Time, regardless of including, in any event, in connection with the Offer, the Merger and this Agreement, whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full fullest extent permitted under applicable law, and (ii) keep in effect the DGCL, the Company's certificate provisions in its articles of incorporation or by-laws or any and bylaws containing the provisions with respect to exculpation of director and officer liability and indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred set forth in the defense articles of any such Claim; provided, however, that neither Laser nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors incorporation and bylaws of the Company on the date of this Agreement to the fullest extent permitted under applicable law, which provisions shall not be amended, repealed or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved otherwise modified in any Claim manner adverse to the Company Indemnified Parties, without the prior written consent of such persons, except as required by applicable law.
(b) The Company will, and after the Company Effective Timetime, Laser shall, or shall Purchaser agrees that it will cause the Surviving Corporation to, periodically advance to such Indemnified Person use its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto.
(b) Laser and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and cause to be maintained in effect for a period of not less than six (6) years after from the Effective Time policies of directors' and officers' liability insurance maintained by the Company with respect to matters occurring prior to the Effective Time and providing substantially similar coverage in amounts and on containing terms and conditions which are no less advantageous than those currently in place, provided, that currently provided to such existing and former directors and officers; provided further that neither Laser nor the -------- Surviving Corporation shall not at any time be required to pay an annual premium for D&O Insurance in excess of 200150% of the last annual premium paid by the Company prior to the date hereofhereof (it being understood that if the Surviving Corporation is unable to obtain the insurance required by this Section 6.07(b), but in such case it shall purchase obtain as much coverage ---------------- comparable insurance as possible for an annual premium equal to such maximum amount).
(c) Any Company Indemnified Party wishing to claim indemnification under this Section 6.07 after the Effective Time, upon learning of any such claim, ------------ action, suit, proceeding or investigation, shall promptly notify the Surviving Corporation thereof, but the failure to so notify shall not relieve the Surviving Corporation of any liability it may have to such Company Indemnified Party if such failure does not significantly prejudice the Surviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) the Surviving Corporation shall have the right to assume the defense thereof and the Surviving Corporation shall not be liable to such Company Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Company Indemnified Parties in connection with the defense thereof, except that if the Surviving Corporation elects not to assume such defense, or counsel for the Company Indemnified Parties advises the Surviving Corporation in writing that there are issues which raise conflicts of interest between the Surviving Corporation and the Company Indemnified Parties, the Company Indemnified Parties may retain counsel reasonably satisfactory to them, and the Surviving Corporation shall pay all reasonable fees and expenses of such counsel for the Company Indemnified Parties promptly as statements therefor are received; provided, however, that (i) the Surviving Corporation shall be -------- ------- obligated pursuant to this paragraph (c) to pay for only one counsel for all Company Indemnified Parties, (ii) the Company Indemnified Parties will cooperate in the defense of any such matter and (iii) the Surviving Corporation shall not be liable for any settlement effected without its prior written consent, which will not be unreasonably withheld; and provided, further, that the Surviving -------- ------- Corporation shall not have any obligation hereunder to any Company Indemnified Party if and when a court of competent jurisdiction shall ultimately determine that the indemnification of such Company Indemnified Party in the manner contemplated hereby is prohibited by applicable law.
(d) The provisions of Notwithstanding anything to the contrary in this Section 7.8 are 6.07, at any ------------ time that Purchaser and its affiliates (i) cease to control at least a majority of the issued and outstanding Common Shares entitled to be voted at a meeting of stockholders of the Company for the election of directors, and (ii) less than a majority of the Company Board consists of persons designated by Purchaser or its affiliates, the obligations of Purchaser under this Section 6.07 shall ------------ terminate.
(e) This Section 6.07 is intended to be for the benefit of, and shall be ------------ enforceable by, each of the Company Indemnified Person, his or her Parties and their respective heirs and his successors. The indemnification provided for herein shall not be deemed exclusive of any other rights to which a Company Indemnified Party is entitled, whether pursuant to law, contract or her personal representativesotherwise. The Company shall pay all expenses, including reasonable attorneys' fees, that are incurred by any Company Indemnified Party which is the prevailing party in any action or proceeding to enforce the indemnity and other obligations provided for in this Section 6.07. ------------
(f) In the event that the Surviving Corporation or any of its controlling persons or 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, to the extent necessary to effectuate the purpose of this Section 6.07, proper ------------ provision shall be made so that the successors and assigns of the Surviving Corporation or such controlling persons shall succeed to the obligations set forth in this Section 6.07 and none of the actions described in clauses (i) or ------------ (ii) shall be taken until such provision is made.
Appears in 2 contracts
Samples: Merger Agreement (Coinmach Laundry Corp), Merger Agreement (CLC Acquisition Corp)
Continuance of Existing Indemnification Rights. (a) 4.16.1 For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or PSC shall cause the Surviving Corporation to, indemnify, defend and hold harmless any person who is now, now or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company Consumers (an "Indemnified Person") against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company Consumers or one of Consumers' subsidiaries is or was serving at the request of the Company Consumers as a director, officer, employee employee, or agent of another corporation, partnership, joint venture, venture trust or other enterpriseenterprise or one of Consumers' subsidiaries; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case case, to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCLMBCA, the Company's certificate Consumers' Articles of incorporation Incorporation or byBy-laws Laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Time, Laser shall, or PSC shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its reasonable legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto.
(b) Laser 4.16.2 PSC and the Company Consumers agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate Consumers' Articles of incorporation Incorporation, or byBy-laws Laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) , to the extent such rights and limitations are consistent with the DGCLMBCA; provided, however, that in the event any Claim is asserted or made within such six (6) year period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further further, that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCLMBCA, the Company's certificate Consumers' Articles of incorporation Incorporation, or byBy-laws Laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; PSC and provided further further, that nothing in this Section 7.8 4.16 shall impair any rights or obligations of any current or former director or officer of the CompanyConsumers.
(c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a 4.16.3 PSC shall, in its sole discretion, either maintain Consumers' existing directors' and officers' liability insurance policy ("D&O Insurance") or substitute for the benefit D&O Insurance such policies of the Company's existing substantially similar coverage and amounts containing terms no less advantageous to such former directors and officers commencing at or officers; provided further, that if the Holdings Effective Time and for a period of not less than existing D&O Insurance expires or is canceled within six (6) years after from the Company Effective Time providing Time, PSC shall use its best efforts to obtain substantially similar coverage in amounts D&O Insurance; and on terms no less advantageous than provided further, that currently provided to such existing and former directors and officers; provided further that neither Laser nor the Surviving Corporation PSC shall not be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount. If PSC provides a substitute insurance policy for the D&O Insurance, Consumers shall use its best efforts to cause each director and officer of Consumers to complete any application required by the insurance company providing such insurance.
(d) 4.16.4 The provisions of this Section 7.8 4.16 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Philadelphia Suburban Corp), Agreement and Plan of Merger (Consumers Water Co)
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or Acquiror shall cause the Surviving Corporation to, indemnify, defend and hold harmless any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case case, to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCL, the Company's certificate of incorporation or by-by- laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser Acquiror nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof8.9. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Time, Laser Acquiror shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto.
(b) Laser Acquiror and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) , to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such six-year period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further further, that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to LaserAcquiror; and provided further further, that nothing in this Section 7.8 8.9 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or Acquiror shall maintain the Surviving Corporation shall use reasonable best efforts to obtain a Company's existing directors' and officers' liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing Time; provided, however, that Acquiror may substitute therefor policies of substantially similar coverage in and amounts and on containing terms no less advantageous than that currently provided to such existing and former directors and or officers; provided further further, that if the existing D&O Insurance expires or is cancelled during such period, Acquiror or the Surviving Corporation shall use its best efforts to obtain substantially similar D&O Insurance; and provided further, that neither Laser Acquiror nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(d) The provisions of this Section 7.8 8.9 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 1 contract
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (Time, and during the period following the Holdings Effective Time but prior to the Company Effective Time)pendency thereafter of any Claim (as defined below) asserted or made within such six year period, Laser shall, or shall cause the Surviving Corporation to, shall indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") of the Company or any of its subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, each a "Claim") to the extent that any such Claim directly or indirectly is based on, or arises out of: (i) of the fact that that: such Indemnified Person is or was a director or officer of the Company or is any of its subsidiaries, including any claim based in whole or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) in part on this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case case, to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full fullest extent permitted under the DGCL, the Company's certificate Second Restated Certificate of incorporation or Incorporation and by-laws or and any indemnification agreement in effect at to which the date hereofCompany and an Indemnified Party are parties, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser nor the Surviving Corporation shall not be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company Surviving Corporation or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; 5.6 and provided further provided, further, that in the event Surviving Corporation shall not be liable for any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect settlement effected without its prior written consent (which consent shall not be unreasonably withheld). Any Indemnified Party wishing to claim indemnification under this Section 5.6 upon learning of any such Claim shall continue until disposition thereofnotify the Company (or after the Effective Time, the Surviving Corporation), but the failure to so notify shall not relieve a party from any liability that it may have under this Section 5.6, except to the extent that such failure prejudices such party. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict or a potential conflict on any significant issue between the positions of any two or more Indemnified Parties. Without limiting the generality of the preceding sentenceforegoing, in the event if any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Time, Laser shall, or shall cause then the Surviving Corporation to, shall periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of providing an undertaking to reimburse all amounts so advanced in the event case of a final non-appealable nonappealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled theretoto be indemnified therefor.
(b) Laser The Trust and the Company agree that all rights to indemnification, to defense, and all limitations with respect theretobeing held harmless (including rights to advancement of expenses), existing in favor of any Indemnified Person, as provided in the Company's certificate Second Restated Certificate of incorporation Incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto that would be adverse to any Indemnified Person unless, as to any such Indemnified Person, such Indemnified person consents thereto, . The obligations of the Surviving Corporation pursuant to Section 5.6(a) and this Section 5.6(B) shall be assigned in accordance with Section 8.10.
(c) The Surviving Corporation shall maintain the Company's existing directors' and officers' liability insurance policy (the "D&O Insurance") for a period of not less than six (6) years from after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in (i) upon the event any Claim sale by the Surviving Corporation of all or substantially all of its assets to an unaffiliated person, which person provides a substitute policy of similar coverage and amounts containing terms no less advantageous to such former directors or officers than the D&O Insurance and agrees to maintain such coverage for a period of not less than six years after the Effective Time, the Surviving Corporation's obligation hereunder shall cease, (ii) the Company or such unaffiliated person, as the case may be, may substitute therefor policies of similar coverage and amounts containing terms no less advantageous to such former directors or officers and (iii) if the existing D&O Insurance expires or is asserted or made within canceled during such period, all then the Surviving Corporation or such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreementunaffiliated person, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use its reasonable best efforts to obtain a directors' and officers' liability insurance policy ("substantially similar to the D&O Insurance"; provided, further, that if the aggregate annual premiums for such insurance pursuant to this Section 5.6(c) for the benefit at any time during such period shall exceed 100% of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period per annum rate of not less than six (6) years after premium paid by the Company Effective Time providing substantially similar coverage in amounts and on terms no less advantageous than that currently provided to its subsidiaries as of the date hereof for such existing and former directors and officers; provided further that neither Laser nor insurance, the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in provide only such case shall purchase as much coverage as possible shall then be available for such amount.
(d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 1 contract
Continuance of Existing Indemnification Rights. (a) For The Certificate of Incorporation and Bylaws of the Surviving Corporation shall contain provisions with respect to elimination of personal liability and indemnification substantially to the same effect as those set forth in the Certificate of Incorporation and Bylaws of Company on the date hereof, which provisions shall not be amended, repealed or otherwise modified for a period of six (6) years from and after the Company Effective Time (and during Closing, or in the period following the Holdings Effective Time but case of matters occurring at or prior to the Company Effective Time)Time that have not been resolved during the six-year period, Laser shalluntil such matters are finally resolved, or shall cause in any manner that would adversely affect the Surviving Corporation to, indemnify, defend and hold harmless rights thereunder of any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent (or any individual who served at Company's request as an officer, director, employee or agent) of another Company or any Company Subsidiary (or any other corporation, partnership, joint venture, trust or other enterprise; or ) (ii) this Agreement or individually an "Indemnified Party" and collectively the Holdings Merger Agreement or any of the transactions contemplated hereby or thereby"Indemnified Parties"), in Parent will cause Company to and will itself indemnify each case Indemnified Party to the fullest extent that any such Claim pertains required or permitted by law, the Certificate of Incorporation and Bylaws of Company with respect to any matter claim, liability, loss, damage, judgment, fine, penalty, amount paid in settlement or fact arisingcompromise, cost or expense, including reasonable fees and expenses of legal counsel, based in whole or in part on, or arising in whole or in part out of, any matter, state of affairs or occurrence existing or occurring at or prior to the Closing.
(b) Parent shall or at shall cause the Surviving Corporation to maintain and provide in full director's and officer's liability insurance ("D&O Insurance") for a period of not less than six years from and after the Effective Time for the individuals described in Section 7.14(a) for which D&O Insurance is provided by Company Effective Time, regardless as of whether such Claim is asserted or claimed prior the date hereof pursuant to, at or after the Company Effective Timeand in amounts and on terms consistent with, to the full extent permitted under the DGCL, the CompanyParent's certificate existing D&O Insurance as of incorporation or by-laws or any indemnification agreement in effect at the date hereof; provided that, including provisions relating the Surviving Corporation may substitute therefor policies of substantially similar coverage and amounts containing terms no less advantageous to advancement of expenses incurred in the defense of any such Claimformer directors or officers; provided, howeverfurther, that if the existing D&O Insurance expires or is canceled during such period, Parent or the Surviving Corporation shall use its best efforts to obtain substantially similar D&O Insurance; and provided, further, that neither Laser Parent nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof. Without limiting the generality of the preceding sentenceexpend, in the event any Indemnified Person becomes involved in any Claim after the Company Effective Time, Laser shall, order to maintain or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto.
(b) Laser and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing substantially similar coverage in amounts and on terms no less advantageous than that currently provided to such existing and former directors and officers; provided further that neither Laser nor the Surviving Corporation shall be required to pay procure an annual premium for D&O Insurance policy an amount in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(dc) The rights under this Section 7.14 are contingent upon the occurrence of, and will survive consummation of, the Closing. The provisions of this Section 7.8 7.14 are expressly intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representativesrepresentatives and shall be binding on all successors and assigns of Parent, Company and the Surviving Corporation.
Appears in 1 contract
Samples: Merger Agreement (Symbion Inc/Tn)
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or shall cause the Surviving Corporation to, indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified PersonINDEMNIFIED PERSON") against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "ClaimCLAIM") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or thereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCL, the Company's certificate of incorporation or by-laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; providedPROVIDED, howeverHOWEVER, that neither Laser nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further PROVIDED FURTHER that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim after the Company Effective Time, Laser shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto.
(b) Laser and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; providedPROVIDED, howeverHOWEVER, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further PROVIDED FURTHER that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further PROVIDED FURTHER that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a liability insurance policy ("D&O InsuranceINSURANCE") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing substantially similar coverage in amounts and on terms no less advantageous than that currently provided to such existing and former directors and officers; provided further PROVIDED FURTHER that neither Laser nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 1 contract
Samples: Merger Agreement (Sunbeam Corp/Fl/)
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or Acquiror shall cause the Surviving Corporation to, indemnify, defend and hold harmless any person Person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case case, to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full extent permitted under the DGCL, the Company's certificate of incorporation or by-laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser Acquiror nor the Surviving Corporation shall be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof8.9. Without limiting the generality of the preceding sentence, in the event any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Time, Laser Acquiror shall, or shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced in the event of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled thereto.
(b) Laser Acquiror and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) , to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such six-year period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further further, that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to LaserAcquiror; and provided further further, that nothing in this Section 7.8 8.9 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or Acquiror shall maintain the Surviving Corporation shall use reasonable best efforts to obtain a Company's existing directors' and officers' liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing Time; provided, however, that Acquiror may substitute therefor policies of substantially similar coverage in and amounts and on containing terms no less advantageous than that currently provided to such existing and former directors and or officers; provided further further, that if the existing D&O Insurance expires or is cancelled during such period, Acquiror or the Surviving Corporation shall use its best efforts to obtain substantially similar D&O Insurance; and provided further, that neither Laser Acquiror nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(d) The provisions of this Section 7.8 8.9 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 1 contract
Samples: Merger Agreement (Beneficial Corp)
Continuance of Existing Indemnification Rights. (a) For six (6) years From and after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or Rent-Way shall cause the Surviving Corporation to, indemnify, defend and hold harmless any to the fullest extent permitted under Applicable Law each person who is now, or has been at any time prior to the date hereof, an officer or who becomes prior to the Company Effective Timedirector of Rent-Way or HCI or any HCI Subsidiary (individually, a director or officer of the Company (an "Indemnified PersonParty" and collectively, the ") Indemnified Parties"), against all losses, claims, damages, liabilities, costs and or expenses (including attorneys' fees and expenses), judgments, fines, losses penalties and amounts paid in settlement in connection with any actual or threatened claim, action, suit, proceeding or investigation arising out of or pertaining to acts or omissions, or 25 27 alleged acts or omissions, by them in their capacities as such occurring at or prior to the Effective Time. In the event of any such claim, action, suit, proceeding or investigation (eachan "Action"), a "Claim") to the extent that any such Claim is based on, or arises out of: (i) the fact that such any Indemnified Person is or was a director or officer of the Company or is or was serving at the request of the Company as a directorParty wishing to claim indemnification shall promptly notify Rent-Way thereof, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or Rent-Way shall pay the Holdings Merger Agreement or any reasonable fees and expenses of counsel selected by the Indemnified Party, which counsel shall be reasonably acceptable to Rent-Way, in advance of the transactions contemplated hereby or thereby, in each case to the extent that final disposition of any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, Action to the full extent permitted under the DGCLby Applicable Law, the Company's certificate upon receipt of incorporation or byany undertaking required by Applicable Law, and (iii) Rent-laws or any indemnification agreement in effect at the date hereof, including provisions relating to advancement of expenses incurred Way will cooperate in the defense of any such Claimmatter; provided, however, that neither Laser nor the Surviving Corporation Rent-Way shall not be required liable for any settlement effected without its written consent (which consent will not be unreasonably withheld) and provided, further, that Rent-Way shall not be obligated pursuant to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; 7.9 to pay the fees and provided further that disbursements of more than one counsel for all Indemnified Parties in any single Action except to the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof. Without limiting the generality of the preceding sentenceextent that, in the event any opinion of counsel for the Indemnified Person becomes involved in any Claim after the Company Effective TimeParties, Laser shall, or shall cause the Surviving Corporation to, periodically advance to two of more of such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to reimburse all amounts so advanced Parties have conflicting interests in the event outcome of a final non-appealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled theretoaction.
(b) Laser and the Company agree that all rights to indemnification, and all limitations with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing substantially similar coverage in amounts and on terms no less advantageous than that currently provided to such existing and former directors and officers; provided further that neither Laser nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amount.
(d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
Appears in 1 contract
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time), Laser shall, or Employer shall cause the Surviving Corporation to, ---------------------------------------------- indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") Employee against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, each a "Claim") to the extent that any such Claim is based on, or arises out of: (i) of the fact that such Indemnified Person Employee is or was a director director, officer, employee or officer agent of the Company Employer or any of its subsidiaries or is or was serving at the request of the Company Employer or any of its subsidiaries as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or thereby, in each case to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective TimeAugust 21, 1998, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Timesuch date, to the full extent permitted under the DGCLlaws of the State of New York, the CompanyEmployer's certificate Certificate of incorporation Incorporation or byBy-laws or any indemnification agreement in effect at the date hereofas of August 21, 1998 including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser nor the Surviving Corporation Employer shall not be required to indemnify any Indemnified Person Employee in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company Employee unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company Employer or unless such proceeding is brought by an Indemnified Person Employee to enforce rights under this Section 7.8; and provided further that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereofParagraph 2. Without limiting the generality of the preceding sentence, in the event any Indemnified Person Employee becomes involved in any Claim Claim, after the Company Effective TimeAugust 21, Laser shall1998, or Employer shall cause the Surviving Corporation to, periodically advance to such Indemnified Person its Employee his legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of an undertaking to provided, however, that Employee will reimburse all amounts so advanced in the event case of a final non-appealable nonappealable determination by a court of competent jurisdiction that such Indemnified Person Employee is not entitled thereto.
(b) Laser to be indemnified therefor. Employer shall continue to maintain its current directors' and the Company agree that all rights to indemnificationofficers' liability insurance, and all limitations which shall cover Employee with respect thereto, existing in favor of any Indemnified Person, as provided in the Company's certificate of incorporation or by-laws and any indemnification agreement in effect at to events that occurred before the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto, for a period of six (6) years from the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in the event any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreement, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use reasonable best efforts to obtain a liability insurance policy ("D&O Insurance") for the benefit of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period of not less than six (6) years after the Company Effective Time providing substantially similar coverage in amounts and on containing terms no less advantageous than that currently provided to such existing and former directors and officers; provided further that neither Laser nor the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in such case shall purchase as much coverage as possible for such amountEmployee.
(d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
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Samples: Severance Agreement (Us Wats Inc)
Continuance of Existing Indemnification Rights. (a) For six (6) years after the Company Effective Time (Time, and during the period following the Holdings Effective Time but prior to the Company Effective Time)pendency thereafter of any Claim (as defined below) asserted or made within such six year period, Laser shall, or shall cause the Surviving Corporation to, shall indemnify, defend and hold harmless any person who is now, or has been at any time prior to the date hereof, or who becomes prior to the Company Effective Time, a director or officer of the Company (an "Indemnified Person") of the Company or any of its subsidiaries against all losses, claims, damages, liabilities, costs and expenses (including attorneys' fees and expenses), judgments, fines, losses and amounts paid in settlement in connection with any actual or threatened action, suit, claim, proceeding or investigation (each, each a "Claim") to the extent that any such Claim directly or indirectly is based on, or arises out of: (i) of the fact that that: such Indemnified Person is or was a director or officer of the Company or is any of its subsidiaries, including any claim based in whole or was serving at the request of the Company as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise; or (ii) in part on this Agreement or the Holdings Merger Agreement or any of the transactions contemplated hereby or therebyhereby, in each case case, to the extent that any such Claim pertains to any matter or fact arising, existing or occurring prior to or at the Company Effective Time, regardless of whether such Claim is asserted or claimed prior to, at or after the Company Effective Time, to the full fullest extent permitted under the DGCL, the Company's certificate Second Restated Certificate of incorporation or by-Incorporation and by- laws or and any indemnification agreement in effect at to which the date hereofCompany and an Indemnified Party are parties, including provisions relating to advancement of expenses incurred in the defense of any such Claim; provided, however, that neither Laser nor the Surviving Corporation shall not be required to indemnify any Indemnified Person in connection with any proceeding (or portion thereof) involving any Claim initiated by such Indemnified Person against the Company unless the initiation of such proceeding (or portion thereof) was authorized by the Board of Directors of the Company Surviving Corporation or unless such proceeding is brought by an Indemnified Person to enforce rights under this Section 7.8; 5.6 and provided further provided, further, that in the event Surviving Corporation shall not be liable for any Claim is asserted or made within such period, all such rights, liabilities and limitations in respect settlement effected without its prior written consent (which consent shall not be unreasonably withheld). Any Indemnified Party wishing to claim indemnification under this Section 5.6 upon learning of any such Claim shall continue until disposition thereofnotify the Company (or after the Effective Time, the Surviving Corporation), but the failure to so notify shall not relieve a party from any liability that it may have under this Section 5.6, except to the extent that such failure prejudices such party. The Indemnified Parties as a group may retain only one law firm to represent them with respect to each such matter unless there is, under applicable standards of professional conduct, a conflict or a potential conflict on any significant issue between the positions of any two or more Indemnified Parties. Without limiting the generality of the preceding sentenceforegoing, in the event if any Indemnified Person becomes involved in any Claim Claim, after the Company Effective Time, Laser shall, or shall cause then the Surviving Corporation to, shall periodically advance to such Indemnified Person its legal and other expenses (including the cost of any investigation and preparation incurred in connection therewith), subject to the providing by such Indemnified Person of providing an undertaking to reimburse all amounts so advanced in the event case of a final non-appealable nonappealable determination by a court of competent jurisdiction that such Indemnified Person is not entitled theretoto be indemnified therefor.
(b) Laser The Trust and the Company agree that all rights to indemnification, to defense, and all limitations with respect theretobeing held harmless (including rights to advancement of expenses), existing in favor of any Indemnified Person, as provided in the Company's certificate Second Restated Certificate of incorporation Incorporation or by-laws and any indemnification agreement in effect at the date hereof, shall survive the Holdings Merger and the Company Merger and shall continue in full force and effect, without any amendment thereto that would be adverse to any Indemnified Person unless, as to any such Indemnified Person, such Indemnified person consents thereto, . The obligations of the Surviving Corporation pursuant to Section 5.6(a) and this Section 5.6(B) shall be assigned in accordance with Section 8.10.
(c) The Surviving Corporation shall maintain the Company's existing directors' and officers' liability insurance policy (the "D&O Insurance") for a period of not less than six (6) years from after the Company Effective Time (and during the period following the Holdings Effective Time but prior to the Company Effective Time) to the extent such rights and limitations are consistent with the DGCL; provided, however, that in (i) upon the event any Claim sale by the Surviving Corporation of all or substantially all of its assets to an unaffiliated person, which person provides a substitute policy of similar coverage and amounts containing terms no less advantageous to such former directors or officers than the D&O Insurance and agrees to maintain such coverage for a period of not less than six years after the Effective Time, the Surviving Corporation's obligation hereunder shall cease, (ii) the Company or such unaffiliated person, as the case may be, may substitute therefor policies of similar coverage and amounts containing terms no less advantageous to such former directors or officers and (iii) if the existing D&O Insurance expires or is asserted or made within canceled during such period, all then the Surviving Corporation or such rights, liabilities and limitations in respect of any such Claim shall continue until disposition thereof; provided further that any determination required to be made with respect to whether an Indemnified Person's conduct complies with the standards set forth under the DGCL, the Company's certificate of incorporation or by-laws or any such agreementunaffiliated person, as the case may be, shall be made by independent legal counsel selected by such Indemnified Person and reasonably acceptable to Laser; and provided further that nothing in this Section 7.8 shall impair any rights or obligations of any current or former director or officer of the Company.
(c) Laser or the Surviving Corporation shall use its reasonable best efforts to obtain a directors' and officers' liability insurance policy ("substantially similar to the D&O Insurance"; provided, further, that if the aggregate annual premiums for such insurance pursuant to this Section 5.6(c) for the benefit at any time during such period shall exceed 100% of the Company's existing and former directors and officers commencing at the Holdings Effective Time and for a period per annum rate of not less than six (6) years after premium paid by the Company Effective Time providing substantially similar coverage in amounts and on terms no less advantageous than that currently provided to its subsidiaries as of the date hereof for such existing and former directors and officers; provided further that neither Laser nor insurance, the Surviving Corporation shall be required to pay an annual premium for D&O Insurance in excess of 200% of the last annual premium paid prior to the date hereof, but in provide only such case shall purchase as much coverage as possible shall then be available for such amount.
(d) The provisions of this Section 7.8 are intended to be for the benefit of, and shall be enforceable by, each Indemnified Person, his or her heirs and his or her personal representatives.
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