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

Director and Officer Indemnification and Insurance. Pursuant to the Merger Agreement, all rights to indemnification, advancement of expenses and exculpation from liabilities for acts or omissions occurring prior to the Effective Time now existing in favor of the current or former directors, officers or employees of the Company and its subsidiaries (collectively, "Indemnified Persons") as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of the Merger Agreement, or pursuant to any such contract entered into after its execution with Xxxxxx's prior written consent, will be assumed by the surviving corporation in the Merger and survive the Merger, and will be observed by the Surviving Corporation and its subsidiaries to the fullest extent available under applicable laws for a period of six years from the Effective Time and will continue in full force and effect in accordance with their terms (and shall not be amended, repealed or otherwise modified in any manner that would adversely affect the rights thereunder of such Indemnified Persons), and Parent will cause the surviving corporation in the Merger to comply with and honor the foregoing obligations. The Merger Agreement requires the Company to use its reasonable best efforts, prior to closing, to purchase (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) a "tail" insurance policy with a claims period of six years from the Effective Time with respect to directors' and officers' liability insurance for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior to the Effective Time in their capacities as directors and officers of the Company (as applicable), on terms with respect to coverage, deductibles and amounts no less favorable in the aggregate than the policy in effect on the date of the Merger Agreement and at a price, with respect to the entire six-year period following the Effective Time, not to exceed 300% of the annual premium currently payable by the Company with respect to such current policy. If the Company fails to purchase such "tail" policy prior to the closing of the Merger, Parent will purchase, or cause to be purchased, the above-mentioned "tail" insurance policy; provided that, that in no event will Parent be required to pay an amount, with respect to the entire six-year period following the Effective Time, in excess of 300% of the annual premium currently payable by the Company with respect to such current policy, it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, Parent will be obligated to cause the surviving corporation in the Merger to obtain a policy with the greatest coverage available for a cost equal to such amount. For a period of six years after the Effective Time, Parent will cause to be maintained in effect any such insurance policy.

Director and Officer Indemnification and Insurance. Pursuant (a) From and after the Purchase Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all obligations of the Company, and cause its subsidiaries to maintain in effect all such obligations owed by them, to each individual who at the Effective Time is, or any time prior to the Merger AgreementEffective Time was, all rights to indemnificationa director, advancement officer or employee of expenses the Company or any of its subsidiaries (the "INDEMNITEES") in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing as provided in favor (x) the Company Charter Documents (or predecessor documents) and the organizational documents of such subsidiaries as currently in effect and (y) the current or former directors, officers or employees indemnification agreements listed on Section 5.7(a) of the Company and its subsidiaries (collectivelyDisclosure Schedule, "Indemnified Persons") as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of the Merger Agreement, or pursuant to any such contract entered into after its execution with Xxxxxx's prior written consent, will be assumed by the surviving corporation in which shall survive the Merger and survive the Merger, and will be observed by the Surviving Corporation and its subsidiaries to the fullest extent available under applicable laws for a period of six years from the Effective Time and will continue in full force and effect in accordance with their terms (respective terms. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation and its subsidiaries to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in any a manner that would adversely affect the rights thereunder of such Indemnified Persons)the Indemnitees. In addition, the Surviving Corporation shall, and Parent will shall cause the surviving corporation Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee in connection with enforcing the Merger to comply with indemnity and honor the foregoing obligations. The Merger Agreement requires the Company to use its reasonable best efforts, prior to closing, to purchase (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) a "tail" insurance policy with a claims period of six years from the Effective Time with respect to directors' and officers' liability insurance other obligations provided for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior in this Section 5.7 as incurred to the Effective Time in their capacities as directors and officers of fullest extent permitted under applicable Law, provided that the Company (as applicable), on terms with respect person to coverage, deductibles and amounts no less favorable in the aggregate than the policy in effect on the date of the Merger Agreement and at a price, with respect whom expenses are advanced provides an undertaking to repay such advances to the entire six-year period following the Effective Time, not to exceed 300% of the annual premium currently payable extent required by the Company with respect to such current policy. If the Company fails to purchase such "tail" policy prior to the closing of the Merger, Parent will purchase, or cause to be purchased, the above-mentioned "tail" insurance policy; provided that, that in no event will Parent be required to pay an amount, with respect to the entire six-year period following the Effective Time, in excess of 300% of the annual premium currently payable by the Company with respect to such current policy, it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, Parent will be obligated to cause the surviving corporation in the Merger to obtain a policy with the greatest coverage available for a cost equal to such amount. For a period of six years after the Effective Time, Parent will cause to be maintained in effect any such insurance policyapplicable Law.

Director and Officer Indemnification and Insurance. Pursuant (a) From and after the Purchase Date, the Surviving Corporation shall, and Parent shall cause the Surviving Corporation to, assume all obligations of the Company, and cause its subsidiaries to maintain in effect all such obligations owed by them, to each individual who at the Effective Time is, or any time prior to the Merger AgreementEffective Time was, all rights to indemnificationa director, advancement officer or employee of expenses the Company or any of its subsidiaries (the "Indemnitees") in respect of indemnification and exculpation from liabilities for acts or omissions occurring at or prior to the Effective Time now existing as provided in favor (x) the Company Charter Documents (or predecessor documents) and the organizational documents of such subsidiaries as currently in effect and (y) the current or former directors, officers or employees indemnification agreements listed on Section 5.7(a) of the Company and its subsidiaries (collectivelyDisclosure Schedule, "Indemnified Persons") as provided in their respective certificates of incorporation or bylaws (or comparable organizational documents) and any indemnification or other agreements of the Company as in effect on the date of the Merger Agreement, or pursuant to any such contract entered into after its execution with Xxxxxx's prior written consent, will be assumed by the surviving corporation in which shall survive the Merger and survive the Merger, and will be observed by the Surviving Corporation and its subsidiaries to the fullest extent available under applicable laws for a period of six years from the Effective Time and will continue in full force and effect in accordance with their terms (respective terms. Without limiting the foregoing, Parent, from and after the Effective Time, shall cause the certificate of incorporation and by-laws of the Surviving Corporation and its subsidiaries to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in any a manner that would adversely affect the rights thereunder of such Indemnified Persons)the Indemnitees. In addition, the Surviving Corporation shall, and Parent will shall cause the surviving corporation Surviving Corporation to, pay any expenses (including fees and expenses of legal counsel) of any Indemnitee in connection with enforcing the Merger to comply with indemnity and honor the foregoing obligations. The Merger Agreement requires the Company to use its reasonable best efforts, prior to closing, to purchase (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) a "tail" insurance policy with a claims period of six years from the Effective Time with respect to directors' and officers' liability insurance other obligations provided for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their acts and omissions occurring prior in this Section 5.7 as incurred to the Effective Time in their capacities as directors and officers of fullest extent permitted under applicable Law, provided that the Company (as applicable), on terms with respect person to coverage, deductibles and amounts no less favorable in the aggregate than the policy in effect on the date of the Merger Agreement and at a price, with respect whom expenses are advanced provides an undertaking to repay such advances to the entire six-year period following the Effective Time, not to exceed 300% of the annual premium currently payable extent required by the Company with respect to such current policy. If the Company fails to purchase such "tail" policy prior to the closing of the Merger, Parent will purchase, or cause to be purchased, the above-mentioned "tail" insurance policy; provided that, that in no event will Parent be required to pay an amount, with respect to the entire six-year period following the Effective Time, in excess of 300% of the annual premium currently payable by the Company with respect to such current policy, it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, Parent will be obligated to cause the surviving corporation in the Merger to obtain a policy with the greatest coverage available for a cost equal to such amount. For a period of six years after the Effective Time, Parent will cause to be maintained in effect any such insurance policyapplicable Law.

Director and Officer Indemnification and Insurance. Pursuant to the Merger Agreement, all rights to indemnification, advancement of expenses From and exculpation from liabilities for acts or omissions occurring prior to after the Effective Time now existing in favor of Time, the current or former directors, officers or employees Surviving Corporation shall assume all obligations of the Company with respect to indemnification and exculpation of its subsidiaries directors and officers (collectively, the "Indemnified PersonsIndemnitees") as provided in their respective certificates of incorporation or bylaws (or comparable organizational documentsx) and any indemnification or other agreements of the Company Charter Documents as currently in effect and (y) the indemnification agreements listed on the date of the Merger AgreementSchedule 6.7, or pursuant to any such contract entered into after its execution with Xxxxxx's prior written consent, will be assumed by the surviving corporation in which shall survive the Merger and survive the Merger, and will be observed by the Surviving Corporation and its subsidiaries to the fullest extent available under applicable laws for a period of six years from the Effective Time and will continue in full force and effect in accordance with their terms respective terms. Without limiting the foregoing, for the six (6) year period commencing immediately after the Effective Time, and except as prohibited by Law, the Surviving Corporation shall cause the articles of incorporation and bylaws of the Surviving Corporation to contain provisions no less favorable to the Indemnitees with respect to limitation of liabilities of directors and officers and indemnification than are set forth as of the date of this Agreement in the Company Charter Documents, which provisions shall not be amended, repealed or otherwise modified in any a manner that would adversely affect the rights thereunder of such Indemnified Persons), and Parent will cause the surviving corporation in Indemnitees. For the Merger to comply with and honor the foregoing obligations. The Merger Agreement requires the Company to use its reasonable best efforts, prior to closing, to purchase six (through a nationally recognized insurance broker approved by Parent (such approval not to be unreasonably withheld, conditioned or delayed)) a "tail" insurance policy with a claims 6)-year period of six years from commencing immediately after the Effective Time with respect to Time, Parent shall maintain in effect the Company's current directors' and officers' liability insurance for the benefit of the Indemnified Persons who are currently covered by such existing policy with respect to their covering acts and or omissions occurring at or prior to the Effective Time in their capacities as directors with respect to those Persons who are currently (and officers of any additional Persons who prior to the Company (as applicable), Effective Time become) covered by the Company's directors' and officers' liability insurance policy on terms with respect to such coverage, deductibles and amounts no in amount, not less favorable in the aggregate to such Persons than the those of such policy in effect on the date hereof (or Parent may substitute therefor policies, issued by reputable insurers, of at least the same coverage in all material respects with respect to matters occurring prior to the Effective Time); provided, however, that, if the aggregate annual premiums for such insurance shall exceed the current annual premium, then Parent shall provide or cause to be provided a policy for the applicable individuals with the best coverage as shall then be reasonably available at an annual premium not to exceed 150% of the Merger Agreement current annual premium. The obligations of Parent and at the Surviving Corporation under this Section 6.7 shall not be terminated or modified in such a pricemanner from and after the Effective Time as to adversely affect the rights of any Indemnitee to whom this Section 6.7 applies unless the affected Indemnitee shall have consented to such termination or modification (it being expressly agreed that the Indemnitees to whom this Section 6.7 applies shall be third party beneficiaries of this Section 6.7). The provisions of this Section 6.7 are (i) intended to be for the benefit of, and shall be enforceable by, each Indemnitee, his or her heirs and his or her representatives and (ii) in addition to, and not in substitution for, any other rights to indemnification or contribution that any such Person may have by contract or otherwise. In the event that Parent, the Surviving Corporation, or any of their respective successors or assigns, transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, proper provision shall be made so that the successors and assigns of Parent and the Surviving Corporation shall assume all of the obligations thereof set forth in this Section 6.7. If the Company renews its director and officer liability insurance policies and key-man life insurance policies, as disclosed on items 2 and 3 under clauses (iii), (iv), and (vii) on Schedule 6.1(a), then the Company shall fully pay all amounts with respect to any such renewal prior to the Closing. If the Company renews or purchases a key-man life insurance policy, then the Company shall also fully pay the annual premiums under such policy, as disclosed on item 3 under clauses (iii), (iv), and (vii) on Schedule 6.1(a), prior to the Closing. Employee Matters. Parent shall, for a period of twelve (12) months immediately following the Closing Date, cause the Surviving Corporation and its subsidiaries to provide employees of the Company (the "Company Employees") generally with (i) the same overall level of base salary as in effect on the Closing Date and (ii) employee benefit plans, that are not materially less favorable, in the aggregate, than similar employee benefit plans provided by the Parent to its employees prior to the Closing Date, or, if of lesser value, the employee benefit plans of the Company. Parent or one of its affiliates shall recognize the service of the Company Employees with the Company prior to the Closing Date as service with Parent and its affiliates in connection with any employee benefit plans and employment policies (including vacations and holiday policies) maintained by Parent or one of its affiliates that are made available following the Closing Date by Parent or one of its affiliates for purposes of any waiting period, vesting, eligibility and benefit entitlement (but excluding benefit accruals); provided, however, that with respect to any defined benefit pension plan maintained by Parent or one of its affiliates in which such Company Employee participates following the Closing Date, such service credit shall be measured from the earliest date that such employee commenced participation in a tax-qualified pension or savings plan maintained by the Company. Parent shall (i) waive, or cause its insurance carriers to waive, all limitations as to pre-existing and at-work conditions, if any, with respect to the entire six-year period participation and coverage requirements applicable to Company Employees under any welfare benefit plan (as defined in Section 3(1) of ERISA) that is made available by Parent or one of its affiliates to Company Employees who are actively at work following the Effective TimeClosing Date, not to exceed 300% and (ii) if Company Employees become covered under any welfare benefit plan of Parent or one of its affiliates for part of the annual premium currently payable plan year that includes the Closing Date, Parent shall provide credit to Company Employees for any co-payments, deductibles and out-of-pocket expenses actually paid by such employees under the employee benefit plans, programs and arrangements of the Company with respect to such current policy. If during the Company fails to purchase such "tail" policy prior to the closing portion of the Merger, Parent will purchase, or cause to be purchased, relevant plan year including the above-mentioned "tail" insurance policy; provided that, that in no event will Parent be required to pay an amount, with respect to the entire six-year period following the Effective Time, in excess of 300% of the annual premium currently payable by the Company with respect to such current policy, it being understood that if the annual premiums payable for such insurance coverage exceeds such amount, Parent will be obligated to cause the surviving corporation in the Merger to obtain a policy with the greatest coverage available for a cost equal to such amount. For a period of six years after the Effective Time, Parent will cause to be maintained in effect any such insurance policyClosing Date.