Director and Officer Insurance and Indemnification. (a) Prior to the Closing, the Company shall obtain at its expense a fully prepaid “tail” directors’ and officers’ liability insurance policy, which (i) has an effective term of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s existing directors’ and officers’ liability insurance policy in effect as of the Agreement Date and only for matters occurring at or prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term. (b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer shall cause the Surviving Corporation (and, to the extent applicable, any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) the foregoing obligations shall be subject to any limitation imposed by applicable Law, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an Indemnifying Party pursuant to this Agreement. (c) Subject to the other express terms of this Agreement, Buyer shall be under no obligation to maintain the existence of the Surviving Corporation for any specified period following the Effective Time. (d) The obligations of Buyer, the Surviving Corporation, and its successors under this Section 7.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).
Appears in 1 contract
Samples: Merger Agreement (F5 Networks, Inc.)
Director and Officer Insurance and Indemnification. (a) Prior to the Closing, the Company shall obtain at its expense a fully prepaid “tail” directors’ and officers’ liability insurance policy, which (i) has an effective term of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s ’ existing directors’ and officers’ liability insurance policy in effect as of the Agreement Date and only for matters occurring at or prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term.
(b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer shall cause the Surviving Corporation (and, to the extent applicable, any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) the foregoing obligations shall be subject to any limitation imposed by applicable Law, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an a Indemnifying Party pursuant to this Agreement.
(c) Subject to the other express terms of this Agreement, Buyer shall be under no obligation to maintain the existence of the Surviving Corporation for any specified period following the Effective Time.
(d) The obligations of Buyer, the Surviving Corporation, and its successors under this Section 7.13 7.14 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).
Appears in 1 contract
Samples: Merger Agreement (F5 Networks Inc)
Director and Officer Insurance and Indemnification. (a) Prior to the Closing, the Company shall obtain at its expense a fully prepaid “tail” directors’ and officers’ liability insurance policy, which (i) has an effective term of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s existing directors’ and officers’ liability insurance policy in effect as of the Agreement Date and only for matters occurring at or prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term. The cost of any Company D&O Tail Policy shall be considered a Transaction Expense for purposes hereof.
(b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer Acquiror shall cause the Surviving Corporation (and, to the extent applicable, any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational similar charter documents of any Subsidiary as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company or any Subsidiary and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Company Disclosure Schedule and true and complete copies of which have been made available to the Buyer Acquiror (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) the foregoing obligations shall be subject to any an limitation imposed by applicable LawLegal Requirements, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses Indemnifiable Damages claimed by any of the Indemnified Parties Persons against such Company Indemnified Party in his or her capacity as an Indemnifying Party a Company Stockholder pursuant to this Agreement. The Company D&O Tail Policy will be the primary obligor for any claims by the Company Indemnified Parties under this Section 5.16, and the Company Indemnified Parties shall seek recovery from the Company D&O Tail Policy prior to seeking recourse from the Surviving Corporation pursuant to the Company Indemnification Provisions.
(c) Subject to the other express terms of this Agreement, Buyer Acquiror shall be under no obligation to maintain the existence of the Surviving Corporation for any specified period following the Effective Time. In the event that, following the Effective Time, Acquiror or the Surviving Corporation (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, proper provision shall be made so that either the successors or assigns of Acquiror or the Surviving Corporation, as the case may be, shall assume the obligations set forth in this Section 5.16.
(d) The obligations of Buyer, the Surviving Corporation, and its successors under Company Indemnified Parties to whom this Section 7.13 5.16 applies shall not be terminated, amended, or otherwise modified in such a manner as third party beneficiaries of this Section 5.16. The provisions of this Section 5.16 are intended to adversely affect any be for the benefit of each Company Indemnified Party (or and his or her successors, heirs, personal executors, trustees, fiduciaries, administrators or representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).
Appears in 1 contract
Samples: Merger Agreement (E2open Inc)
Director and Officer Insurance and Indemnification. (a) Prior to the Closing, the Company shall obtain at its expense a fully prepaid “tail” directors’ and officers’ liability insurance policy, which (i) has an effective term of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s and the Company Subsidiaries’ existing directors’ and officers’ liability insurance policy in effect as of the Agreement Date and only for matters occurring at or prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers of the Company and the Company Subsidiaries (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer Acquiror shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term. The cost of any Company D&O Tail Policy shall be considered a Transaction Expense for purposes hereof.
(b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer Acquiror shall cause the Surviving Corporation (and, to the extent applicable, any [***] Confidential treatment has been requested for the bracketed portions. The confidential redacted portion has been omitted and filed separately with the Securities and Exchange Commission. successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Company Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational similar charter documents of any Company Subsidiary as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company or any Company Subsidiary and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer Acquiror (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) the foregoing obligations shall be subject to any limitation imposed by applicable LawLegal Requirements, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an Indemnifying Party a Company Securityholder pursuant to this Agreement.
(c) Subject to the other express terms of this AgreementAgreement (including, Buyer without limitation, Section 1.10), Acquiror shall be under no obligation to maintain the existence of the Surviving Corporation for any specified period following the Effective Time.
(d) The obligations of Buyer, the Surviving Corporation, and its successors under this Section 7.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Quotient Technology Inc.)
Director and Officer Insurance and Indemnification. (a) Prior For a period of six (6) years from and after the Effective Time, Parent shall, and shall cause the Surviving Corporation to, indemnify and hold harmless the individuals who at any time prior to the Closing, Effective Time were directors or officers of the Company or any of its present or former Subsidiaries or corporate parents (the “D&O Indemnified Parties”) against any costs or expenses (including reasonable attorneys’ fees), judgments, fines, losses, claims, damages or liabilities in connection with actions or omissions occurring at or prior to the Effective Time (including the transactions contemplated by this Agreement) to the fullest extent permitted by Applicable Law, and Parent shall obtain at its expense a fully prepaid “tail” directors’ cause the Surviving Corporation to fulfill the obligations of the Company to the D&O Indemnified Parties pursuant to the terms of the Company Charter and officers’ liability insurance policy, which the Company Bylaws and any indemnification agreements between the Company and the D&O Indemnified Parties as in effect as of the date of this Agreement.
(ib) has an effective term of Parent shall maintain or cause the Surviving Corporation to maintain in effect for not less than six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by Time the Company’s existing current policies of directors’ and officers’ liability insurance policy in effect as of and fiduciary liability insurance maintained by the Agreement Date Company and only the Company’s Subsidiaries for the D&O Indemnified Parties and any other employees, agents or other individuals otherwise covered by such insurance policies prior to the Effective Time (collectively, the “Insured Parties”) with respect to matters occurring at or prior to the Effective Time, and Time (iii) contains coverage terms comparable to those applicable to including the current directors and officers of the Company (the “Company D&O Tail Policy”transactions contemplated by this Agreement). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term.
(b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer shall cause the Surviving Corporation (and, to the extent applicable, any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) Parent or the foregoing obligations shall Surviving Corporation will not be subject required in order to any limitation imposed maintain such policies to pay an annual premium with respect solely to the policies of the Surviving Corporation in excess of 300% of the greater of (A) the last annual premium paid by applicable Law, the Company prior to the date of this Agreement and (B) the annual premium for the year in which the Closing occurs (the amount which is 300% of the greater of the amounts set forth in clauses (A) and (B) being referred to as the “Premium Cap”); and (ii) no Company Indemnified Party shall have any right of contributionif equivalent coverage cannot be obtained, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed can be obtained only by any paying an annual premium in excess of the Indemnified Parties against such Premium Cap, then the Company Indemnified Party shall maintain policies that, in his or her capacity as the Company’s good faith judgment, provide the maximum coverage available at an Indemnifying Party pursuant annual premium equal to this Agreementthe Premium Cap.
(c) Subject to For the other express terms purposes of this AgreementSection 9.1, Buyer the amount of any indemnification to which any D&O Indemnified Party is entitled shall be under no obligation to maintain reduced by the existence amount of the Surviving Corporation for any specified period following the Effective Timepayment actually received by such D&O Indemnified Party from any insurance policy, net of any deductibles or other amounts payable with respect thereto by such D&O Indemnified Party.
(d) The In no event shall any D&O Indemnified Party be entitled to seek indemnification from Parent, the Company or the Surviving Corporation pursuant to this Section 9.1, the terms of the Company Charter or the Company Bylaws as in effect on the date of this Agreement, pursuant to Applicable Laws, or as provided in any indemnification agreements in place with between the Company and the D&O Indemnified Parties as of the date of this Agreement with respect to any amount such D&O Indemnified Party is obligated to pay pursuant to Article X hereof or with respect to any amount that is paid out of the Escrow Amount, to any Indemnified Party, on behalf of such D&O Indemnified Party pursuant to Article X hereof.
(e) This Section 9.1 is intended to benefit the Insured Parties and the D&O Indemnified Parties, and shall be binding on all successors and assigns of Parent, Merger Sub, the Company and the Surviving Corporation. Parent hereby guarantees the payment and performance by the Surviving Corporation of the indemnification and other obligations pursuant to this Section 9.1 and the certificate of Buyerincorporation and bylaws of the Surviving Corporation.
(f) In the event that Parent, the Surviving Corporation, Corporation or any of their successors or assigns (i) consolidates with or merges into any other Person and its successors under this Section 7.13 shall not be terminatedthe continuing or surviving Person of such consolidation or merger or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, amendedthen, or otherwise modified and in each such a manner as to adversely affect any Company Indemnified Party (or his or her heirscase, personal representatives, proper provision shall be made so that the successors, assigns and transferees of Parent or assigns) without the prior written consent of such Company Indemnified Party (Surviving Corporation or his or her heirs, personal representatives, successors, their respective successors or assigns, as applicable)the case may be, assume the obligations set forth in this Section 9.1.
Appears in 1 contract
Samples: Merger Agreement (Drugstore Com Inc)
Director and Officer Insurance and Indemnification. (a) Prior to the Closing, the Company shall obtain at its expense For a fully prepaid “tail” directors’ and officers’ liability insurance policy, which (i) has an effective term period of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s existing directors’ and officers’ liability insurance policy in effect as of the Agreement Date and only for matters occurring at or prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term.
(b) From and 60 months after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer shall cause the Surviving Corporation (andwill provide, to the extent applicableat its sole expense, each individual who served as a director or officer of Target at any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or time prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (collectively, the “Company Indemnified PartiesCovered D&O’s”) pursuant to any indemnification provisions under with liability insurance no less favorable in coverage and amount than the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as applicable insurance in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or immediately prior to the Effective Time; provided, however, in the event that the cost of liability insurance for such coverage exceeds 150% of the annual cost of such insurance in effect immediately before the Effective Time, the Surviving Corporation may reduce the coverage and amount of liability insurance only to the extent necessary so that the annual cost of liability insurance does not exceed 150% of the annual cost of the insurance in effect immediately before the Effective Time. For the avoidance of doubt, except as provided in the immediately preceding sentence of this Section 5.9(a), the Surviving Corporation shall not be permitted to reduce or limit the coverage or policy limits of such insurance.
(ib) For a period of 60 months after the foregoing Effective Time, Surviving Corporation shall fulfill and honor in all respects the obligations of Target and its Subsidiaries pursuant to any indemnification provision and any exculpation provision for directors and officers set forth in the Organizational Documents of Target or any of its Subsidiaries as in effect on the date of this Agreement. During such period, the Organizational Documents of Surviving Corporation shall contain the provisions with respect to indemnification and exculpation from liability for directors and officers set forth in Target’s Organizational Documents on the date of this Agreement, and such provisions shall not be amended, repealed or otherwise modified in any manner (including any amendment accomplished through merger, recapitalization, consolidation or reorganization) that could adversely affect the rights of any indemnified party thereunder; provided, however, that such indemnification shall be subject to any limitation imposed by from time to time under applicable Law, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an Indemnifying Party pursuant to this Agreement.
(c) Subject to the other express terms of this Agreement, Buyer shall be under no obligation to maintain the existence of the If at any time Surviving Corporation is unable for any specified period following reason to fulfill its obligations set forth in this Section 5.9, Parent hereby unconditionally guarantees to fulfill the Effective Time.
(d) The obligations of Buyer, the Surviving Corporation, and its successors under Corporation set forth in this Section 7.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable)5.9.
Appears in 1 contract
Samples: Merger Agreement (Zila Inc)
Director and Officer Insurance and Indemnification. (a) Prior to the ClosingClosing Date, the Company Seller Parties shall obtain at its expense a fully prepaid purchase customary “tail” policies of directors’ and officers’ liability insurance policynaming the directors and officers of Freedom and FMDI as direct beneficiaries and providing protection no less favourable in the aggregate to the protection provided by the policies maintained by Xxxx and its Subsidiaries (including Freedom and FMDI) which are in effect immediately prior to the Closing Date and providing protection in respect of claims arising from facts or events which occurred on or prior to the Closing Date, which (i) has an effective term of and the Seller Parties shall maintain such tail policies in effect without any reduction in scope or coverage for six (6) years from the Effective TimeClosing Date; provided that the Seller Parties shall not be required to pay any amounts in respect of such coverage prior to the Closing Time and provided further that the cost of such policies shall not exceed 300% (such amount, the “Base Premium”) of Xxxx’x (iias applicable) covers current annual aggregate premium for policies currently maintained by Xxxx or its Subsidiaries; provided further, however, that if such insurance can only those persons who are currently covered by be obtained at a premium in excess of the Company’s existing Base Premium, the Seller Parties (as applicable) may purchase the most advantageous policies of directors ’ and officers’ liability insurance reasonably available for an annual premium not to exceed the Base Premium, and the Seller Parties shall maintain such coverage for six years from the Closing Date. For greater certainty, the Purchaser acknowledges and agrees that, at the Seller Parties’ option, the foregoing directors’ and officers’ liability insurance policy in effect as may form part of the Agreement Date directors’ and only for matters occurring at or prior officers’ liability insurance policy required to the Effective Time, and (iii) contains coverage terms comparable be purchased by Xxxx pursuant to those applicable to the current directors and officers Section 4.13 of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its termArrangement Agreement.
(b) From The Purchaser shall cause Freedom and after FMDI to honour all rights to indemnification or exculpation now existing under applicable Law, the Effective TimeConstating Documents of Freedom and FMDI or under indemnification agreements entered into in the ordinary course of business in favour of present and former employees, officers and directors of Freedom and FMDI (together with their respective heirs, executors or administrators, the “D&O Indemnitees”), and until acknowledges that such rights shall survive the sixth (6th) anniversary Closing and shall continue in full force and effect in accordance with their terms without modification for a period of not less than six years from the Effective TimeClosing Date, Buyer and the Purchaser shall cause Freedom and FMDI and any of their respective successors or assigns (including any corporation or other entity continuing following the Surviving Corporation amalgamation, merger, consolidation or winding up of Freedom or FMDI with or into one or more other entities (andpursuant to a statutory procedure or otherwise)), as applicable, to the extent applicable, any successor or assign continue to honour such rights of the Surviving Corporation) to fulfill indemnification and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (the “Company Indemnified Parties”) exculpation and indemnify such D&O Indemnitees pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”)thereto, with respect to claims arising out actions or omissions of matters such D&O Indemnitees occurring at or prior to the Effective Closing Time; provided, however, that (i) the foregoing obligations shall be subject to any limitation imposed by applicable Law, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement for six years from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an Indemnifying Party pursuant to this AgreementClosing Date.
(c) Subject If Freedom, FMDI or any of their respective successors or assigns (including any corporation or other entity continuing following the amalgamation, merger, consolidation or winding up of Freedom or FMDI with or into one or more other entities (pursuant to a statutory procedure or otherwise)) (i) consolidates with or merges into any other Person and is not a continuing or surviving corporation or entity of such consolidation or merger, or (ii) transfers all or substantially all of its properties and assets to any Person, the other express terms Purchaser shall ensure that any such successor or assign (including, as applicable, any acquirer of this Agreement, Buyer shall be under no obligation to maintain the existence substantially all of the Surviving Corporation for any specified period following properties and assets of Freedom or FMDI) assumes all of the Effective Timeobligations set forth in this Section 4.11.
(d) The Purchaser shall pay all reasonable expenses, including legal fees, that may be incurred by any D&O Indemnitee in enforcing the indemnity and other obligations provided for in this Section 4.11. The rights of Buyer, the Surviving Corporationeach D&O Indemnitee hereunder shall be in addition to, and its successors not in limitation of, any other rights such D&O Indemnitee may have under the Constating Documents of Freedom or FMDI or any other indemnification arrangements.
(e) The provisions of this Section 7.13 4.11 shall not be terminatedbinding, amendedjointly and severally, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without on all successors and assigns of the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable)Purchaser.
Appears in 1 contract
Samples: Share Purchase Agreement (Rogers Communications Inc)
Director and Officer Insurance and Indemnification. (a) Prior to the Closing, the Company shall obtain at its expense a fully prepaid “tail” directors’ and officers’ liability insurance policy, which (i) has an effective term of six (6) years from the Effective Time, (ii) covers only those persons who are currently covered by the Company’s existing directors’ and officers’ liability insurance policy in effect as of the Agreement Date and only for matters occurring at or prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term.
(b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer shall cause the Surviving Corporation (and, to the extent applicable, any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company or any Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) the foregoing obligations shall be subject to any limitation imposed by applicable Law, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an Indemnifying Party pursuant to this Agreement.
(c) Subject to the other express terms of this Agreement, Buyer shall be under no obligation to maintain the existence of the Surviving Corporation for any specified period following the Effective Time.
(d) The obligations of Buyer, the Surviving Corporation, and its successors under this Section 7.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).
Appears in 1 contract
Samples: Merger Agreement (F5 Networks, Inc.)
Director and Officer Insurance and Indemnification. (a) Prior By virtue of the occurrence of the Merger, First Banks agrees that it shall from and after the Effective Time assume and perform Coast’s obligations with respect to indemnification or exculpation now existing in favor of the directors, officers, employees and agents of Coast, the Bank and the Coast Subsidiaries as provided in the FBCA, and the articles of incorporation, bylaws, and indemnification agreements of Coast, the Bank or the Coast Subsidiaries or otherwise in effect as of the date of this Agreement with respect to matters occurring at any time prior to the ClosingEffective Time. Section 4.11 of the Disclosure Schedule contains a complete list of all indemnification agreements to which Coast is a party to on the date of this Agreement. Coast agrees not to amend any existing agreements under which Coast, the Company shall obtain at its expense Bank, or any Coast Subsidiaries has agreed to indemnify any of the present or former directors, officers, employees, or agents of Coast, the Bank, or any Coast Subsidiary, or enter into new indemnification agreements providing such indemnification.
(b) Coast represents that it has received a fully prepaid “tail” quote for the purchase of an insurance policy extension from Travelers Insurance for Coast’s current policy providing directors’ and officers’ liability insurance policyfor all present and former directors and officers of Coast, the Bank, or any Coast Subsidiary, which extension will extend through April 1, 2012 for $98,962, and First Bank agrees to arrange with Coast for the purchase of the extension at the price described herein prior to the Closing Date.
(c) In the event First Banks, the Surviving Corporation, or any of their successors or assigns (i) has an effective term consolidates with or merges into any other person and shall not be the continuing or surviving corporation or entity of six (6) years from the Effective Timesuch consolidation or merger, or (ii) covers only those persons transfers or conveys all or substantially all of its properties or assets to any person, then, and in each such case, proper provision shall be made so that the successors and assigns of First Banks assume, guarantee, and perform the obligations set forth in this Section 4.11.
(d) The provisions of this Section 4.11 are intended to be for the benefit of, and shall be enforceable by, each person who are currently covered by is now, or has been at any time prior to the Company’s existing directors’ and officers’ liability insurance policy in effect as date of the this Agreement Date and only for matters occurring at or who becomes prior to the Effective Time, and (iii) contains coverage terms comparable to those applicable to the current directors and officers an officer or director of the Company (the “Company D&O Tail Policy”). The Surviving Corporation (following the Effective Time) and the Buyer shall not cancel (or permit to be cancelled) the Company D&O Tail Policy during its term.
(b) From and after the Effective Time, and until the sixth (6th) anniversary of the Effective Time, Buyer shall cause the Surviving Corporation (and, to the extent applicable, any successor or assign of the Surviving Corporation) to fulfill and honor in all material respects the obligations of the Company to Persons who on or prior to the Effective Time are or were directors and/or officers of the Company Coast or any Coast Subsidiary (the “Company Indemnified Parties”) pursuant to any indemnification provisions under the Company’s Certificate of Incorporation or Bylaws or such Subsidiary’s organizational documents as in effect on the Agreement Date and pursuant to any indemnification agreements between the Company and such Company Indemnified Parties existing as of the Agreement Date, in each case which have been disclosed on the Disclosure Schedule and true and complete copies of which have been made available to the Buyer (the “Company Indemnification Provisions”), with respect to claims arising out of matters occurring at or prior to the Effective Time; provided, however, that (i) the foregoing obligations shall be subject to any limitation imposed by applicable Law, and (ii) no Company Indemnified Party shall have any right of contribution, indemnification or right of advancement from the Surviving Corporation or its successor with respect to any Losses claimed by any of the Indemnified Parties against such Company Indemnified Party in his or her capacity as an Indemnifying Party pursuant to this Agreementheirs and representatives.
(c) Subject to the other express terms of this Agreement, Buyer shall be under no obligation to maintain the existence of the Surviving Corporation for any specified period following the Effective Time.
(d) The obligations of Buyer, the Surviving Corporation, and its successors under this Section 7.13 shall not be terminated, amended, or otherwise modified in such a manner as to adversely affect any Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns) without the prior written consent of such Company Indemnified Party (or his or her heirs, personal representatives, successors, or assigns, as applicable).
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