Common use of Continuance of Existing Indemnification Rights Clause in Contracts

Continuance of Existing Indemnification Rights. (a) The Articles of Incorporation and By-laws of the Surviving Corporation shall contain provisions with respect to indemnification of individuals who at any time prior to the expiration of the Amended Offer (or at any time after expiration of the Amended Offer and prior to the Effective Time) were directors, officers, or otherwise entitled to indemnification thereunder (the "Indemnified Parties") which are at least as favorable to each Indemnified Party as the Articles of Incorporation and By-laws of Company as of the date hereof. The Articles of Incorporation and By-laws of the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of an Indemnified Party. For a period of six years from and after the Effective Time, Parent and Surviving Corporation shall indemnify, defend and advance expenses in matters that may be subject to indemnification to the Indemnified Parties with respect to liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws and indemnification agreements in effect on the date of this Agreement and applicable provisions of Law. In addition, for a period expiring six years after the expiration or termination of any consulting obligations under any agreement requiring any Indemnified Party to provide consulting services to Parent or the Surviving Corporation following the expiration of the Amended Offer or the Effective Time, Parent, Company and the Surviving Corporation shall indemnify, defend and advance expenses to Indemnified Parties in matters that would be subject to indemnification with respect to liabilities and claims (and related expenses) made against them resulting from their service as a consultant under any such agreement to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws, indemnification and consulting agreements in effect on the date of this Agreement and applicable provisions of Law. (b) Parent shall cause to be maintained in effect for a period ending not sooner than the sixth anniversary of the Effective Time directors' and officers' liability insurance providing at least the same coverage with comparable carriers with respect to Company's directors and officers as the policies maintained on behalf of directors and officers of Company as of the date hereof, and containing terms and conditions which are no less advantageous, with respect to matters occurring on or prior to the Effective Time (to the extent such insurance is available with respect to such matters); provided, that in no event shall Parent be required to expend to maintain or procure insurance coverage pursuant to this Section 8.7 an amount per annum in excess of 200% of the current annual premiums for the twelve-month period ended November 30, 1996 (the "Maximum Premium") with respect to such insurance, or, if the cost of such coverage exceeds the Maximum Premium, the maximum amount of coverage that can be purchased or maintained for the Maximum Premium. (c) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 8.7, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, provided that the failure of an Indemnified Party to promptly notify Parent shall not relieve Parent of its obligations under this Section 8.7 except to the extent Parent is materially prejudiced by such failure. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld; and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. (d) Without limiting any other provision of this Agreement, in the event that any claim for which coverage under Company's directors' and officers' liability insurance policy would be available is not paid pursuant to such directors' and officers' liability insurance policy because such amount does not exceed the "deductible" or "retention amount" of such policy, Parent or Sub shall promptly, at the election of the director or officer, reimburse or pay or promptly cause Company to reimburse or pay any officer or director for any amount, up to an aggregate of $500,000 for all officers and directors, payable or paid because such amount is not in excess of the "deductible" or the "retention amount". In the event that rights shall be reserved with regard to whether coverage for any claim is available under Company's directors' and officers' insurance policy, upon written request from an officer or director, Parent or Sub shall pay or cause Company to pay, upon receipt of an undertaking from the officer or director making the written request to reimburse any amounts paid if it is ultimately determined that coverage with respect to such claim is not available under such policy, any officer or director for any amount, up to an aggregate of $500,000, together with all other amounts payable pursuant to this subsection (d) of this Section 8.7 for all officers and directors, payable by such persons because such amount is not in excess of the "deductible" or "retention amount".

Continuance of Existing Indemnification Rights. (a) The Articles of Incorporation and By-laws of the Surviving Corporation shall contain provisions with respect to indemnification of individuals who at any time prior to the expiration of the Amended Offer (or at any time after expiration of the Amended Offer and prior to the Effective Time) were directors, officers, or otherwise entitled to indemnification thereunder (the "Indemnified Parties") which are at least as favorable to each Indemnified Party as the Articles of Incorporation and By-laws of Company as of the date hereof. The Articles of Incorporation and By-laws of the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of an Indemnified Party. For a period of six years from and after the Effective Time, Parent and Surviving Corporation shall indemnify, defend and advance expenses in matters that may be subject to indemnification to the Indemnified Parties with respect to liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws and indemnification agreements in effect on the date of this Agreement and applicable provisions of Law. In addition, for a period expiring six years after the expiration or termination of any consulting obligations under any agreement requiring any Indemnified Party to provide consulting services to Parent or the Surviving Corporation following the expiration of the Amended Offer or the Effective Time, Parent, Company and the Surviving Corporation shall indemnify, defend and advance expenses to Indemnified Parties in matters that would be subject to indemnification with respect to liabilities and claims (and related expenses) made against them resulting from their service as a consultant under any such agreement to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws, indemnification and consulting agreements in effect on the date of this Agreement and applicable provisions of Law. (b) Parent shall cause to be maintained in effect for a period ending not sooner than the sixth anniversary of the Effective Time directors' and officers' liability insurance providing at least the same coverage with comparable carriers with respect to Company's directors and officers as the policies maintained on behalf of directors and officers of Company as of the date hereof, and containing terms and conditions which are no less advantageous, with respect to matters occurring on or prior to the Effective Time (to the extent such insurance is available with respect to such matters); provided, that in no event shall Parent be required to expend to maintain or procure insurance coverage pursuant to this Section 8.7 an amount per annum in excess of 200% of the current annual premiums for the twelve-month period ended November 30, 1996 (the "Maximum Premium") with respect to such insurance, or, if the cost of such coverage exceeds the Maximum Premium, the maximum amount of coverage that can be purchased or maintained for the Maximum Premium. (c) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 8.7, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, provided that the failure of an Indemnified Party to promptly notify Parent shall not relieve Parent of its obligations under this Section 8.7 except to the extent Parent is materially prejudiced by such failure. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld; and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction juris diction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited pro hibited by applicable law. (d) Without limiting any other provision of this Agreement, in the event that any claim for which coverage under Company's directors' and officers' liability insurance policy would be available is not paid pursuant to such directors' and officers' liability insurance policy because such amount does not exceed the "deductible" or "retention amount" of such policy, Parent or Sub shall promptly, at the election of the director or officer, reimburse or pay or promptly cause Company to reimburse or pay any officer or director for any amount, up to an aggregate of $500,000 for all officers and directors, payable or paid because such amount is not in excess of the "deductible" or the "retention amount". In the event that rights shall be reserved with regard to whether coverage for any claim is available under Company's directors' and officers' insurance policy, upon written request from an officer or director, Parent or Sub shall pay or cause Company to pay, upon receipt of an undertaking from the officer or director making the written request to reimburse any amounts paid if it is ultimately determined that coverage with respect to such claim is not available under such policy, any officer or director for any amount, up to an aggregate of $500,000, together with all other amounts payable pursuant to this subsection (d) of this Section 8.7 for all officers and directors, payable by such persons because such amount is not in excess of the "deductible" or "retention amount".

Continuance of Existing Indemnification Rights. (a) The Articles of Incorporation Company will, and By-laws of after the Effective Time, Purchaser agrees that it will cause the Surviving Corporation shall contain provisions with respect to indemnification of individuals who at any time prior to to, until the expiration of the Amended Offer any applicable statutes of limitation, (or at any time after expiration i) indemnify and hold harmless each present and former director, officer and employee of the Amended Offer Company (collectively, the "Company Indemnified Parties") against any costs or expenses (including reasonable attorneys' fees), judgments, fines, losses, claims, damages or liabilities (collectively, "Costs") (but only to the extent such Costs are not otherwise covered by insurance and paid) incurred in connection with any claim, action, suit, proceeding or investigation, whether civil, criminal, administrative or investigative (collectively, "Claims"), arising out of or pertaining to matters existing or occurring at or prior to the Effective Time, including, in any event, in connection with the Merger and this Agreement, whether asserted or claimed prior to, at or after the Effective Time, to the fullest extent permitted under applicable law, and (ii) were directorskeep in effect the provisions in its certificate of incorporation and bylaws containing the provisions with respect to exculpation of director and officer liability, officersadvancement of expenses, or otherwise entitled to and indemnification thereunder (set forth in the "Indemnified Parties") which are at least as favorable to each Indemnified Party as the Articles certificate of Incorporation incorporation and By-laws of Company as bylaws of the Company on the date hereof. The Articles of Incorporation and By-laws of this Agreement to the Surviving Corporation fullest extent permitted under applicable law, which provisions shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner adverse to the Company Indemnified Parties, without the prior written consent of such persons, except as required by applicable law; provided, further, that would adversely affect the rights thereunder of an Indemnified Party. For a period of six years from and after the Effective Time, Parent and Surviving Corporation shall indemnify, defend and advance expenses in matters that may not be subject required to indemnification to the indemnify or hold harmless any Company Indemnified Parties with in respect to liabilities and claims (and related expenses) made against them resulting from their service as such of acts or omissions occurring at or prior to the Effective Time to the fullest extent permitted under, and subject Extent such acts or omissions relate to the requirements and other provisions ofIndemnified Parties' gross negligence, Company's Articles of Incorporation, By-laws and indemnification agreements in effect on the date of this Agreement and applicable provisions of Law. In addition, for a period expiring six years after the expiration willful misconduct or termination of any consulting obligations under any agreement requiring any Indemnified Party to provide consulting services to Parent or the Surviving Corporation following the expiration of the Amended Offer or the Effective Time, Parent, Company and the Surviving Corporation shall indemnify, defend and advance expenses to Indemnified Parties in matters that would be subject to indemnification with respect to liabilities and claims (and related expenses) made against them resulting from their service as a consultant under any such agreement to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws, indemnification and consulting agreements in effect on the date of this Agreement and applicable provisions of Lawbad faith. (b) Parent shall cause to be maintained in effect for a period ending not sooner than the sixth anniversary of the Effective Time directors' and officers' liability insurance providing at least the same coverage with comparable carriers with respect to Company's directors and officers as the policies maintained on behalf of directors and officers of Any Company as of the date hereof, and containing terms and conditions which are no less advantageous, with respect to matters occurring on or prior to the Effective Time (to the extent such insurance is available with respect to such matters); provided, that in no event shall Parent be required to expend to maintain or procure insurance coverage pursuant to this Section 8.7 an amount per annum in excess of 200% of the current annual premiums for the twelve-month period ended November 30, 1996 (the "Maximum Premium") with respect to such insurance, or, if the cost of such coverage exceeds the Maximum Premium, the maximum amount of coverage that can be purchased or maintained for the Maximum Premium. (c) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 8.75.05 after the Effective Time, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent the Surviving Corporation thereof, provided that but the failure of an Indemnified Party to promptly so notify Parent shall not relieve Parent the Surviving Corporation of its obligations under this Section 8.7 except any liability it may have to such Company Indemnified Party if such failure does not significantly prejudice the extent Parent is materially prejudiced by such failureSurviving Corporation. In the event of any such claim, action, suit, proceeding or investigation (whether arising before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent 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 (b) to pay for only one counsel (as well as any local counsel) for all Company Indemnified Parties, (ii) the Company Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent the Surviving Corporation shall not be liable for any settlement effected without its prior written consent, which consent shall will not be unreasonably withheld; and provided further provided, further, that Parent the Surviving Corporation shall not have any obligation hereunder to any Company Indemnified Party if and when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, determine that the indemnification of such Company Indemnified Party in the manner contemplated hereby is prohibited by applicable law. (c) This Section 5.05 is intended to be for the benefit of, and shall be enforceable by, each of the Company Indemnified Parties and their respective heirs and 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 otherwise. 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 5.05. (d) Without limiting any other provision of this Agreement, in the event that any claim for which coverage under Company's directors' and officers' liability insurance policy would be available is not paid pursuant to such directors' and officers' liability insurance policy because such amount does not exceed the "deductible" or "retention amount" of such policy, Parent or Sub shall promptly, at the election of the director or officer, reimburse or pay or promptly cause Company to reimburse or pay any officer or director for any amount, up to an aggregate of $500,000 for all officers and directors, payable or paid because such amount is not in excess of the "deductible" or the "retention amount". In the event that rights 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 reserved with regard 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 whether coverage for any claim is available under Company's directors' person, then, and officers' insurance policyin each such case, upon written request from an officer or director, Parent or Sub shall pay or cause Company to pay, upon receipt of an undertaking from the officer or director making extent necessary to effectuate the written request to reimburse any amounts paid if it is ultimately determined that coverage with respect to such claim is not available under such policy, any officer or director for any amount, up to an aggregate of $500,000, together with all other amounts payable pursuant to this subsection (d) purpose of this Section 8.7 for all officers 5.05, proper provision shall be made so that the successors and directors, payable by such persons because such amount is not in excess assigns of the "deductible" Surviving Corporation or "retention amount"such controlling persons shall succeed to the obligations set forth in this Section 5.05 and none of the actions described in clauses (i) or (ii) shall be taken until such provision is made.

Continuance of Existing Indemnification Rights. (a) The Articles of Incorporation and By-laws of the Surviving Corporation shall contain provisions with respect to indemnification of individuals who at any time prior to the expiration of the Amended Offer (or at any time after expiration of the Amended Offer and prior to the Effective Time) were directors, officers, or otherwise entitled to indemnification thereunder (the "Indemnified Parties") which are at least as favorable to each Indemnified Party as the Articles of Incorporation and By-laws of -28- 30 Company as of the date hereof. The Articles of Incorporation and By-laws of the Surviving Corporation shall not be amended, repealed or otherwise modified for a period of six years after the Effective Time in any manner that would adversely affect the rights thereunder of an Indemnified Party. For a period of six years from and after the Effective Time, Parent and Surviving Corporation shall indemnify, defend and advance expenses in matters that may be subject to indemnification to the Indemnified Parties with respect to liabilities and claims (and related expenses) made against them resulting from their service as such prior to the Effective Time to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws and indemnification agreements in effect on the date of this Agreement and applicable provisions of Law. In addition, for a period expiring six years after the expiration or termination of any consulting obligations under any agreement requiring any Indemnified Party to provide consulting services to Parent or the Surviving Corporation following the expiration of the Amended Offer or the Effective Time, Parent, Company and the Surviving Corporation shall indemnify, defend and advance expenses to Indemnified Parties in matters that would be subject to indemnification with respect to liabilities and claims (and related expenses) made against them resulting from their service as a consultant under any such agreement to the fullest extent permitted under, and subject to the requirements and other provisions of, Company's Articles of Incorporation, By-laws, indemnification and consulting agreements in effect on the date of this Agreement and applicable provisions of Law. (b) Parent shall cause to be maintained in effect for a period ending not sooner than the sixth anniversary of the Effective Time directors' and officers' liability insurance providing at least the same coverage with comparable carriers with respect to Company's directors and officers as the policies maintained on behalf of directors and officers of Company as of the date hereof, and containing terms and conditions which are no less advantageous, with respect to matters occurring on or prior to the Effective Time (to the extent such insurance is available with respect to such matters); provided, that in no event shall Parent be required to expend to maintain or procure insurance coverage pursuant to this Section 8.7 an amount per annum in excess of 200% of the current annual premiums for the twelve-month period ended November 30, 1996 (the "Maximum Premium") with respect to such insurance, or, if the cost of such coverage exceeds the Maximum Premium, the maximum amount of coverage that can be purchased or maintained for the Maximum Premium. (c) Any Indemnified Party wishing to claim indemnification under paragraph (a) of this Section 8.7, upon learning of any such claim, action, suit, proceeding or investigation, shall promptly notify Parent thereof, provided that the failure of an Indemnified Party to promptly notify Parent shall not relieve Parent of its obligations under this Section 8.7 except to the extent Parent is materially prejudiced by such failure. In the event of any such claim, action, suit, proceeding or investigation (whether arising -29- 31 before or after the Effective Time), (i) Parent or the Surviving Corporation shall have the right to assume the defense thereof and Parent shall not be liable to such Indemnified Parties for any legal expenses of other counsel or any other expenses subsequently incurred by such Indemnified Parties in connection with the defense thereof, (ii) the Indemnified Parties will cooperate in the defense of any such matter and (iii) Parent shall not be liable for any settlement effected without its prior written consent, which consent shall not be unreasonably withheld; and provided further that Parent shall not have any obligation hereunder to any Indemnified Party when and if a court of competent jurisdiction shall ultimately determine, and such determination shall have become final, that the indemnification of such Indemnified Party in the manner contemplated hereby is prohibited by applicable law. (d) Without limiting any other provision of this Agreement, in the event that any claim for which coverage under Company's directors' and officers' liability insurance policy would be available is not paid pursuant to such directors' and officers' liability insurance policy because such amount does not exceed the "deductible" or "retention amount" of such policy, Parent or Sub shall promptly, at the election of the director or officer, reimburse or pay or promptly cause Company to reimburse or pay any officer or director for any amount, up to an aggregate of $500,000 for all officers and directors, payable or paid because such amount is not in excess of the "deductible" or the "retention amount". In the event that rights shall be reserved with regard to whether coverage for any claim is available under Company's directors' and officers' insurance policy, upon written request from an officer or director, Parent or Sub shall pay or cause Company to pay, upon receipt of an undertaking from the officer or director making the written request to reimburse any amounts paid if it is ultimately determined that coverage with respect to such claim is not available under such policy, any officer or director for any amount, up to an aggregate of $500,000, together with all other amounts payable pursuant to this subsection (d) of this Section 8.7 for all officers and directors, payable by such persons because such amount is not in excess of the "deductible" or "retention amount".